Benham, Justice.
This appeal is from an order denying appellants an injunction against enforcement of an ordinance enacted by the City of LaGrange for the expressed purpose of suppressing the secondary effects associated with business establishments offering nude dancing as entertainment. Appellants contend that the ordinance in question is unconstitutional on several grounds, chief among them that it infringes on rights of expression protected by the First Amendment to the Constitution of the United States and by Art. I, Sec. I, Par. V, of the Constitution of Georgia of 1983.
1. As this court did in Harris v. Entertainment Systems, 259 Ga. [905]*905701 (1) (386 SE2d 140) (1989), we first consider whether the ordinance in question reaches expression that is protected by the First Amendment or by Ga. Const. 1983, Art. I, Sec. I, Par. V. Here, as there, we will apply First Amendment standards, with the result that conduct protected by the First Amendment will be protected by the Georgia Constitution. Harris, supra, Div, 1 (a).1
The conduct in question is nude dancing. The Supreme Court of the United States has recognized that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though . . . only marginally so.” Barnes v. Glen Theatre, __ U. S. __ (111 SC 2456, 115 LE2d 504) (1991). Since the ordinance prohibits what it defines as “total nude dancing” and places restrictions on what it defines as “partial nude dancing,” it is clear that the ordinance infringes on protected expression.
2. Having established the effect of the ordinance, we turn to the question of whether the ordinance is a valid exercise of the city’s police power. As this court did in Harris, we will use the analysis applied in Paramount Pictures Corp. v. Busbee, 250 Ga. 252 (1) (c) (297 SE2d 250) (1982): a regulation
will be upheld even though it infringes upon protected expression if “it furthers an important government interest; if the government interest is unrelated to the suppression of speech; and if the incidental restriction of speech is no greater than is essential to the furtherance of that interest.” [Cit.]
Harris, supra, Div. 1 (c).2
In contrast to the statute considered in Harris, the ordinance at issue here contains a “Public Declaration” of its purpose: to “minimalize criminal behavior and undesirable community conditions which may normally be associated with . . .” nude dancing.3 As this [906]*906court did in Harris, we assume that the ordinance’s declaration of purpose satisfies the first two prongs of the Paramount test.
Turning to the last prong of that test, we note first that because we are dealing here with a fundamental right, we must apply a heightened level of scrutiny.4 Viewing the ordinance in that light, we must hold, as this court did in Harris, that the ordinance fails to meet the third prong of the Paramount test, that the incidental restriction of free speech be no greater than is essential. Once again, the problem is overbreadth. In Harris, it was apparent from the statute that it was nude barroom dancing which was targeted. This court found the statute overbroad because it applied to “a host of other establishments besides bars,” including “so-called mainstream performance houses and museums” and bars with televisions on which a soap opera or movie might depict simulated sexual intercourse.
The ordinance in the present case is, by virtue of the breadth of the definitions in it, so broad in application as to include not only bars and mainstream performance houses, but a considerable spectrum of private conduct. For instance, § 30-21-1 (d) of the ordinance defines “Partial nude dancing” as
dancing or appearing partially nude but at a minimum with the human male or female genitals, pubic area and buttocks and all of the nipples of the breasts of a female being at least shielded and covered by a fully opaque covering[.]
Because there are no distinctions drawn in that definition or anywhere else in the ordinance between public and private behavior, that definition would include a female guest dancing at a private pool-side party while wearing a bikini swim suit which failed to cover her buttocks.5 There being no distinction in the ordinance between adults and children, the definition above could be construed to include the appearance of a female child wearing only a diaper.
Likewise, the definition in the ordinance of “Total nude dancing,” (“appearing or dancing in a total state of nakedness . . .”)6 is so broad, without distinction between public and private behavior or adults and children, as to include a person appearing nude at home [907]*907before one other person. To stretch a point, the definition would include a child appearing before its parents at bath time in a “total state of nakedness.”
The application of the ordinance to “so-called mainstream performance houses” (Harris, supra), is unquestionable. The ordinance forbids nude appearances everywhere7 and limits partially nude appearances to licensed establishments,8 the definition of which excludes mainstream performance houses:
the licensee must be a bona fide food service establishment and a restaurant and must have a Class B Retail Pouring License . . . [and] must be engaged predominantly in the business of food service. . . .9
We agree with appellees that governments may impose some restrictions on protected expression in the legitimate exercise of police powers, and it appears that appellees have made a brave start in that direction. Our holding here must not be mistaken for a broad statement of the inviolability of nude dancing as a form of expression. A carefully and narrowly drawn regulatory scheme which makes appropriate distinctions between public and private behavior and which impacts only those modes of expression which, in the experience of local governments, tend to be the focal points of negative effects such as increased crime, can pass constitutional muster notwithstanding some restriction of protected expression. However, the present ordinance, as drafted, is not such a narrowly drawn regulation and we are constrained to find it unconstitutional as an improper exercise of the police powers.
3. In addition to attacking the ordinance as an unconstitutional restriction on the right of free expression, appellant asserts that it is void for vagueness.
A statute violates due process if it is so vague that persons of “ ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ [Cits.] Furthermore, ‘all the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.’ [Cit.]”
Sliney v. State, 260 Ga. 167 (391 SE2d 114) (1990). Applying that standard to the ordinance definitions of “Total nude dancing” and [908]*908“Partial nude dancing,” we find them to be too vague to permit enforcement.
Free access — add to your briefcase to read the full text and ask questions with AI
Benham, Justice.
This appeal is from an order denying appellants an injunction against enforcement of an ordinance enacted by the City of LaGrange for the expressed purpose of suppressing the secondary effects associated with business establishments offering nude dancing as entertainment. Appellants contend that the ordinance in question is unconstitutional on several grounds, chief among them that it infringes on rights of expression protected by the First Amendment to the Constitution of the United States and by Art. I, Sec. I, Par. V, of the Constitution of Georgia of 1983.
1. As this court did in Harris v. Entertainment Systems, 259 Ga. [905]*905701 (1) (386 SE2d 140) (1989), we first consider whether the ordinance in question reaches expression that is protected by the First Amendment or by Ga. Const. 1983, Art. I, Sec. I, Par. V. Here, as there, we will apply First Amendment standards, with the result that conduct protected by the First Amendment will be protected by the Georgia Constitution. Harris, supra, Div, 1 (a).1
The conduct in question is nude dancing. The Supreme Court of the United States has recognized that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though . . . only marginally so.” Barnes v. Glen Theatre, __ U. S. __ (111 SC 2456, 115 LE2d 504) (1991). Since the ordinance prohibits what it defines as “total nude dancing” and places restrictions on what it defines as “partial nude dancing,” it is clear that the ordinance infringes on protected expression.
2. Having established the effect of the ordinance, we turn to the question of whether the ordinance is a valid exercise of the city’s police power. As this court did in Harris, we will use the analysis applied in Paramount Pictures Corp. v. Busbee, 250 Ga. 252 (1) (c) (297 SE2d 250) (1982): a regulation
will be upheld even though it infringes upon protected expression if “it furthers an important government interest; if the government interest is unrelated to the suppression of speech; and if the incidental restriction of speech is no greater than is essential to the furtherance of that interest.” [Cit.]
Harris, supra, Div. 1 (c).2
In contrast to the statute considered in Harris, the ordinance at issue here contains a “Public Declaration” of its purpose: to “minimalize criminal behavior and undesirable community conditions which may normally be associated with . . .” nude dancing.3 As this [906]*906court did in Harris, we assume that the ordinance’s declaration of purpose satisfies the first two prongs of the Paramount test.
Turning to the last prong of that test, we note first that because we are dealing here with a fundamental right, we must apply a heightened level of scrutiny.4 Viewing the ordinance in that light, we must hold, as this court did in Harris, that the ordinance fails to meet the third prong of the Paramount test, that the incidental restriction of free speech be no greater than is essential. Once again, the problem is overbreadth. In Harris, it was apparent from the statute that it was nude barroom dancing which was targeted. This court found the statute overbroad because it applied to “a host of other establishments besides bars,” including “so-called mainstream performance houses and museums” and bars with televisions on which a soap opera or movie might depict simulated sexual intercourse.
The ordinance in the present case is, by virtue of the breadth of the definitions in it, so broad in application as to include not only bars and mainstream performance houses, but a considerable spectrum of private conduct. For instance, § 30-21-1 (d) of the ordinance defines “Partial nude dancing” as
dancing or appearing partially nude but at a minimum with the human male or female genitals, pubic area and buttocks and all of the nipples of the breasts of a female being at least shielded and covered by a fully opaque covering[.]
Because there are no distinctions drawn in that definition or anywhere else in the ordinance between public and private behavior, that definition would include a female guest dancing at a private pool-side party while wearing a bikini swim suit which failed to cover her buttocks.5 There being no distinction in the ordinance between adults and children, the definition above could be construed to include the appearance of a female child wearing only a diaper.
Likewise, the definition in the ordinance of “Total nude dancing,” (“appearing or dancing in a total state of nakedness . . .”)6 is so broad, without distinction between public and private behavior or adults and children, as to include a person appearing nude at home [907]*907before one other person. To stretch a point, the definition would include a child appearing before its parents at bath time in a “total state of nakedness.”
The application of the ordinance to “so-called mainstream performance houses” (Harris, supra), is unquestionable. The ordinance forbids nude appearances everywhere7 and limits partially nude appearances to licensed establishments,8 the definition of which excludes mainstream performance houses:
the licensee must be a bona fide food service establishment and a restaurant and must have a Class B Retail Pouring License . . . [and] must be engaged predominantly in the business of food service. . . .9
We agree with appellees that governments may impose some restrictions on protected expression in the legitimate exercise of police powers, and it appears that appellees have made a brave start in that direction. Our holding here must not be mistaken for a broad statement of the inviolability of nude dancing as a form of expression. A carefully and narrowly drawn regulatory scheme which makes appropriate distinctions between public and private behavior and which impacts only those modes of expression which, in the experience of local governments, tend to be the focal points of negative effects such as increased crime, can pass constitutional muster notwithstanding some restriction of protected expression. However, the present ordinance, as drafted, is not such a narrowly drawn regulation and we are constrained to find it unconstitutional as an improper exercise of the police powers.
3. In addition to attacking the ordinance as an unconstitutional restriction on the right of free expression, appellant asserts that it is void for vagueness.
A statute violates due process if it is so vague that persons of “ ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ [Cits.] Furthermore, ‘all the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.’ [Cit.]”
Sliney v. State, 260 Ga. 167 (391 SE2d 114) (1990). Applying that standard to the ordinance definitions of “Total nude dancing” and [908]*908“Partial nude dancing,” we find them to be too vague to permit enforcement.
Although it would seem that persons of common intelligence would have no difficulty in discerning what is meant by “total nude dancing,” a look at the definition in the ordinance shows a fatal ambiguity.
“Total nude dancing” shall be appearing or dancing in a total state of nakedness without the protection or benefit of the minimal coverings required for partial nude dancing;
§ 30-21-1 (f), Code of Ordinances of the City of LaGrange. By itself, “a total state of nakedness” is perfectly understandable, and we have no doubt that a person of common intelligence would understand that in the context of this ordinance, the wearing of such accessories as shoes and jewelry would not diminish the nudity of an otherwise naked person. Likewise, “without the protection or benefit of the minimal coverings required for partial nude dancing” would be understandable to a person of common intelligence. However, when those two phrases are included in the same definition, confusion arises. For example, a female dancer appearing topless but with a relatively modest skirt would not be in “a total state of nakedness,” but would certainly be “without the protection or benefit of the minimal coverings required for partial nude dancing.” Because that definition does not give sufficient warning so as to permit persons to avoid that which is forbidden, it is void for vagueness. Id.
The definition of “Partial nude dancing,” set out above, is even more vague than that of “Total nude dancing.” The definition purports to set the minimum coverage permissible, but does not clearly do so. As was noted in fn. 5, supra, the ordinance mandates that buttocks be covered, yet it does not dictate the extent to which coverage is necessary. The confusion may readily be seen in the fact that the trial court considered that requirement to be met by the wearing of a G-string, but reference to the dictionary definition of G-string10 does not indicate more than minimal coverage of the buttocks. The definition of “Partial nude dancing” also fails to delineate with any precision the point at which casual attire becomes partial nudity. A person of common intelligence would not be able to say with confidence whether a female dancer wearing a halter top and brief shorts would be within or without the definition, or whether a male dancer wearing [909]*909only a pair of pants would be partially nude within the intent of the statute.
4. Two other portions of the ordinance, both pertaining to the granting and revoking of licenses and permits, fail to comply with the requirements of due process. In § 30-21-15 (e) of the ordinance, persons who wish to appear as partially nude dancers in licensed premises are required to obtain a permit by filling out an application. Nowhere in that section or any other part of the ordinance are standards established governing the granting or denying of such permits. That denial of permits is contemplated by the ordinance is clear from § 30-21-15 (g), which provides for the revocation of permits in the event it is discovered that the application contains material information which is false or that the applicant
has been charged with or has violated laws or has been convicted of the violation of any law which had such violation appeared on the original application would have prevented the granting of the permit.
The absence of ascertainable standards leaves the granting or denying of permits to the uncontrolled discretion of the Chief of Police, which is incompatible with the requirements of due process. Fulton County v. Bartenfeld, 257 Ga. 766 (2) (363 SE2d 555) (1988). Appellant does not contend, and we do not hold, that there can be no requirement that dancers intending to perform at licensed premises obtain permits, but there must be objective standards in the ordinance by which an applicant can intelligently seek to qualify for a permit. Id.
Finally, we agree with appellant that § 30-21-27 of the ordinance, which permits the revocation of a partial nude dancing license on the ground that any of a broad array of persons connected to the licensee has committed a crime, is overbroad. The section in question reads in pertinent part as follows:
If the licensee or if any dancers, waiters, waitresses, bartenders, busperson, or other employee of the licensee or if any stockholder, officer or agent of the licensee, if a corporation, or if any partner, co-owner, joint-venturer, or otherwise related to the licensee shall violate any of the provisions hereof or shall be convicted of any crime involving moral turpitude, whether a felony or misdemeanor and other than traffic violations (unless such traffic violation is related to alcoholic beverages or controlled substance abuse) or shall otherwise fail to comply with the provisions hereof, the license granted pursuant to the provision of this chapter may be revoked. ...
We see no problem in the revocation of the license for the unlawful [910]*910acts or omissions of the licensee (including persons with an ownership interest in a licensee), or for the acts or omissions of those acting for the licensee in the scope of their employment, when the acts involved are related in any way to the business for which the license was issued. The flaw in this section of this ordinance is that it puts a licensee in jeopardy of losing the license by reason of events entirely outside the control of the licensee and unconnected with the regulatory purpose of the license. Under the provision as it now exists, for instance, if a bartender employed by a licensee went to Atlanta on a day off and committed an act of forgery, a crime of moral turpitude (Hall v. State, 180 Ga. App. 210, 213 (348 SE2d 736) (1986)), the license of that person’s employer would be subject to revocation regardless of the licensee’s efforts to hire a law-abiding staff and supervise them carefully on the job. Compare Bryant v. Mayor &c. of Americus, 252 Ga. 76 (1) (311 SE2d 174) (1984); Loyal Order of Moose v. Mayor &c. of Dalton, 246 Ga. 298 (4) (271 SE2d 354) (1980). The revocation provisions, being overbroad, must be narrowed so as to bear some reasonable relation to the reasons for regulation and to put the events triggering revocation within the control of the licensee.
5. Appellants’ other contentions regarding the constitutionality of the ordinance have been considered and found not to require reversal of the trial court’s judgment. However, for the reasons stated above, the trial court’s judgment holding the ordinance constitutional cannot stand.
Judgment reversed.
Clarke, C. J., Hunt, P. J., Sears-Collins, J., and Judge Joe C. Crumbley concur; Fletcher and Hunstein, JJ., dissent in part; Carley, J., not participating.