Goldrush II v. City of Marietta

482 S.E.2d 347, 267 Ga. 683, 97 Fulton County D. Rep. 874, 1997 Ga. LEXIS 99
CourtSupreme Court of Georgia
DecidedMarch 17, 1997
DocketS96A1494, S96A1496 and S96A1497
StatusPublished
Cited by61 cases

This text of 482 S.E.2d 347 (Goldrush II v. City of Marietta) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldrush II v. City of Marietta, 482 S.E.2d 347, 267 Ga. 683, 97 Fulton County D. Rep. 874, 1997 Ga. LEXIS 99 (Ga. 1997).

Opinions

Benham, Chief Justice.

Appellants are establishments which provide adult entertainment and are located within the City of Marietta. For several years, each establishment has applied for and received annual licenses issued by the city authorizing the businesses to provide adult entertainment and to serve alcoholic beverages.1 In January 1995, acting pursuant to the authority granted by a 1994 amendment to the Georgia Constitution, the Marietta City Council passed an amendment to the city’s adult entertainment ordinance which amendment provided that a liquor license would not be issued for a location at which was performed entertainment that required the issuance of an adult entertainment license. In effect, the amended adult entertainment ordinance banned alcohol in adult entertainment establishments by requiring an applicant to choose between obtaining a liquor license or obtaining a license to provide adult entertainment. The amended ordinance also provided that licenses previously granted would not be subject to the amendment until December 31, 1995, “at which time all licensees within the City of Marietta shall be subject to this provision, including those licensees licensed before the effective date hereof.”

Following passage of the 1995 amendment to the city’s adult entertainment ordinance, each of the appellants filed a separate action against the city, its council members, and its mayor, seeking a declaratory judgment on the constitutionality of certain provisions of Marietta’s ordinances; injunctive relief against enforcement of the ordinances; and damages. Appellant Cyprus Lounge also sought a writ of mandamus requiring the city to issue to it adult entertainment and liquor licenses for 1996. The trial court consolidated the three cases and, after an extended hearing, granted summary judg[684]*684ment to the defendants and denied injunctive relief to the plaintiffs. Each of the businesses and the person to whom the adult entertainment and liquor licenses were issued appealed the trial court’s judgment to this Court, and we have consolidated the three appeals.2

1. The 1995 Marietta ordinance amendment was enacted following the ratification of an amendment to the Georgia Constitution which is now embodied in Art. III, Sec. VI, Par. VII. The constitutional amendment gives the State of Georgia “full and complete authority to regulate alcoholic beverages and to regulate, restrict, or prohibit activities involving alcoholic beverages[,]” including the regulatory authority given the States by the Twenty-first Amendment to the U. S. Constitution. The constitutional amendment goes on to delegate this regulatory authority to the counties and municipalities of Georgia “for the purpose of regulating, restricting, or prohibiting the exhibition of nudity, partial nudity, or depictions of nudity in connection with the sale or consumption of alcoholic beverages. ...” Before the trial court, as well as on appeal, appellant Boomer’s contends that the constitutional amendment is a fatally overbroad unconstitutional infringement upon the freedom of éxpression guaranteed by the First Amendment to the U. S. Constitution.

The constitutional amendment’s authorization to the State to “regulate, restrict, or prohibit activities involving alcoholic beverages” and its delegation of regulatory authority to local governments to regulate, restrict, or prohibit nudity, partial nudity, or depictions of nudity, without regard to whether the activity limited or the nudity proscribed is constitutionally protected, run counter to the holdings in Harris v. Entertainment Systems, 259 Ga. 701 (386 SE2d 140) (1989), and Pel Asso, Inc. v. Joseph, 262 Ga. 904 (427 SE2d 264) (1993). In those cases, this Court found a statute and an ordinance overbroad because one went beyond “prohibiting nude dancing in bars” and the other applied to mainstream performance houses and private conduct as well as barroom nude dancing. Despite the appearance of similar overbreadth in the 1994 constitutional amendment, we decline to brand the constitutional amendment as unconstitutionally overbroad because we perceive a fundamental distinction between it and the statute and ordinance which were found lacking in Harris and Pel Asso, Inc.: the constitutional amendment is not a self-executing amendment, but requires the passage of legislation to give it effect.

“A constitutional provision may be said to be self-executing [685]*685if it supplies a sufficient rule by means of which the right given may be enjoyed and protected or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.”

Davis v. Burke, 179 U. S. 399, 403 (21 SC 210, 45 LE 249) (1900), quoting Cooley, Constitutional Limitations. The constitutional amendment at issue here is not self-executing because it “merely indicates a line of policy or principle without supplying the means by which such policy or principle are to be carried into effect,” and because “it appears from the language . . . that subsequent legislation was contemplated to carry it into effect.” 16 CJS 123, 126, Constitutional Law, § 46. The 1994 constitutional amendment “clearly anticipates” the enactment of legislation by the General Assembly or a local governing body to implement the principles set forth in the amendment. Cox v. French, 640 SW2d 786 (Ark. 1982). See J W. A. v. State of Ga., 233 Ga. 683 (212 SE2d 849) (1975). Because implementation of the constitutional amendment requires legislative enactment, the constitutional amendment is not effective until the legislation is passed. State v. Pendergrass, 633 P2d 1113 (Hawaii 1981). See also DeKalb County v. Allstate Beer, 229 Ga. 483 (2) (192 SE2d 342) (1972). Consequently, while the wording of the constitutional amendment authorizes enactment of local legislation that would be condemned as overbroad, it is the language of the enacted local legislation, not the constitutional amendment, which must be examined for overbreadth. That being so, we decline to declare the constitutional amendment unconstitutionally overbroad.

2. (a) Appellant Varsalona asserts that the 1994 constitutional amendment violates the Georgia constitutional provision prohibiting the presentation to voters of a proposed constitutional amendment containing more than one subject matter. 1983 Ga. Const., Art. X, Sec. I, Par. II.

“The test of whether ... a constitutional amendment violates the multiple subject matter rule is whether all of the parts of. . . the constitutional amendment are germane to the accomplishment of a single objective. [Cit.]” Carter v. Burson, 230 Ga. 511 (3) (198 SE2d 151) (1973). See also Sears v. State, 232 Ga. 547 (5) (208 SE2d 93) (1974). It is apparent that the general purpose of the amendment is the regulation of alcoholic beverages. Because the portion of the amendment delegating to local governmental units the authority to regulate the exhibition of nudity in connection with the sale of alcoholic beverages is germane to the general subject of the regulation of alcoholic beverages, the amendment does not violate, the prohibition against multiple subject matters.

[686]*686(b) Varsalona also contends that the wording of the ballot3

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Bluebook (online)
482 S.E.2d 347, 267 Ga. 683, 97 Fulton County D. Rep. 874, 1997 Ga. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldrush-ii-v-city-of-marietta-ga-1997.