Oasis Goodtime Emporium I, Inc. v. City of Doraville

297 Ga. 513

773 S.E.2d 728

OASIS GOODTIME EMPORIUM I, INC. et al.

v.CITY OF DORAVILLE et al.

No. S15A0146.

Supreme Court of Georgia.

June 15, 2015.

Reconsideration Denied July 13, 2015.

Alan I. Begner, Cory Goldsmith Begner, Begner & Begner, P.C., Atlanta, George Brian Spears, Atlanta, Linda I. Dunlavy, Decatur, for appellants.

Bryan A. Dykes, Scott Dean Bergthold, Chattanooga, for appellees.

Opinion

NAHMIAS, Justice.

Oasis Goodtime Emporium I, Inc., d/b/a Oasis, which describes itself as a “restaurant featuring nude dance entertainment and alcohol service,” appeals to this Court to preserve those two pillars of its business—nudity and alcohol. Oasis asserts that when its employees dance nude and serve alcohol, they are clothed with constitutional free speech protection, which the City of Doraville's Code of Ordinances attempts to strip away. Oasis contends that it should not be subject to the Doraville Code at all because the legislation making its land a part of Doraville is void due to an alleged statutory notice defect, and that various portions of the Code are unconstitutional. We conclude, however, that Oasis is properly subject to Doraville's Code and that the City's regulations do not violate the club's constitutional rights, and we therefore affirm the trial court's order granting Doraville judgment on the pleadings.

1. Oasis has operated in DeKalb County since about 1990. Beginning in 2001, Oasis operated under a settlement agreement that resolved litigation between DeKalb County and Oasis and several other adult entertainment businesses. The agreement granted Oasis and the other businesses “adult nonconforming status,” meaning that they were “permitted to sell alcoholic beverages (subject to all other laws and regulation of alcohol) and to provide adult entertainment in the form of nude dancing or live nude performances.”¹

The City of Doraville is in DeKalb County. On March 29, 2012, the General Assembly passed Senate Bill (SB) 532, which amended the City's charter by redefining Doraville's boundaries, effective December 31, 2012; the new city limits encompass Oasis's location. On October 1, 2012, Doraville enacted Ordinance No. 2012–18, which established a sexually oriented business (SOB) code, located at § 6–400 et seq. of the Doraville Code of Ordinances.² The SOB code defines a “sexually oriented business” to include an “adult cabaret,” which in turn is defined as “a nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that regularly features live conduct characterized by semi-nudity. No establishment shall avoid classification as an adult cabaret by offering or featuring nudity.” Code § 6–401. Under this definition, Oasis is a sexually oriented business.³ Employees of sexually oriented businesses are prohibited from appearing fully nude, but semi-nudity is permitted. See Code § 6–416(a).⁴ Sexually oriented businesses are also prohibited from selling alcohol. See Code § 6–416(d) (“No person shall possess, use, or consume alcoholic beverages on the premises of a sexually oriented business.”).

In December 2012, Oasis applied to Doraville for a 2014 alcohol license, and Oasis and its owners (collectively, “Oasis”) also filed a complaint against Doraville, its Mayor, the members of the City Council, and the City Clerk (collectively, “Doraville”), challenging provisions of the City's SOB, alcohol, and zoning codes.⁵ On January 14, 2013, Doraville denied Oasis's application for an alcohol license. Oasis later amended its complaint in this case twice, and Doraville filed answers to both amended complaints. Doraville also moved for judgment on the pleadings, and the trial court granted that motion on April 18, 2014.⁶ Oasis now appeals to this Court, invoking our jurisdiction over constitutional questions. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).

2. Seeking to avoid the Doraville Code entirely, Oasis argues that SB 532, which amended the City of Doraville's charter by redefining the City's boundaries to encompass the land on which Oasis operates, is invalid because the notice requirement of OCGA § 28–1–14(b) was not satisfied. We conclude that Oasis lacks legal standing to pursue this claim.

OCGA § 28–1–14 implements the provision of the 1983 Georgia Constitution stating that “[t]he General Assembly shall provide by law for the advertisement of notice of intention to introduce local bills.” Art. III, Sec. V, Par. IX. With regard to a local bill amending a municipal charter, the statute requires that notice must be given in two different ways before the bill becomes law. Subsection (a) of OCGA § 28–1–14, which applies to all local bills, requires that notice of the intention to introduce such a bill be advertised in the local newspaper for legal notices one time no later than the week before the bill is introduced. Subsection (b) imposes an additional requirement when the local bill would amend “the charter of a municipality or the enabling Act of the governing authority of a county or a consolidated government.” For these bills,

a copy of the notice of the intention to introduce local legislation required by subsection (a) of this Code section [must be] mailed, transmitted by facsimile, or otherwise provided to the governing authority of any county, municipality, or consolidated government referred to in the bill during the calendar week in which such notice is published as provided in subsection (a) of this Code section or during the seven days immediately following the date of publication of such notice.

OCGA § 28–1–14(b).⁷

SB 532 amended Doraville's incorporating act to revise the corporate limits, so the bill was subject to both notice requirements. It is undisputed that the requirement in OCGA § 28–1–14(a) was satisfied. On Thursday, March 8, 2012, The Champion, DeKalb County's newspaper for legal notices, published the following:

NOTICE OF INTENTION TO INTRODUCE LOCAL LEGISLATION: Notice is given that there will be introduced at the regular 2012 session of the General Assembly of Georgia a bill to change the corporate limits of the city of Doraville and for other purposes.

SB 532 was introduced two calendar weeks after that, on Tuesday, March 20; the bill passed on March 29.

Oasis contends that the notice requirement in OCGA § 28–1–14(b) was not satisfied. We need not decide this question, however, because Oasis lacks standing to challenge the validity of the notice of SB 532 that was required to be given to the City of Doraville.⁸ Oasis maintains that because it has been injured by SB 532, which brought it within the domain of Doraville's Code, it has an interest in ensuring compliance with all of the procedures required by OCGA § 28–1–14. But a party only has standing to assert a procedural right “so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 8, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).⁹

OCGA § 28–1–14(a) is clearly designed to protect the interests of the public that may be affected by the amendment of a local law, by requiring notice to the local public of the introduction of such a bill. Oasis, as a business in the area that stood to be affected by SB 532, would have standing to complain had the notice required by subsection (a) not been given—but that notice was properly given. OCGA § 28–1–14(b) is clearly designed to protect a different interest—the interest of a local government entity in notice of a potential amendment to its organic law. Subsection (b) does not require that anything be done with regard to the public, whose interest in notice is addressed by subsection (a). See, e.g., GE Capital Mortgage Services, Inc. v. Clack, 271 Ga. 82, 83, 515 S.E.2d 619 (1999) (holding that a party who was given notice of a tax sale as statutorily required “may not attack the sale on the ground of lack of notice to another party”); Ueal v. AAA Partners in Adoption, Inc., 269 Ga.App. 258, 260, 603 S.E.2d 672 (2004) (explaining that only the “person harmed by the lack of notice to him” may raise the issue); Ryder Automobile Leasing Co. v. Tates, 112 Ga.App. 18, 20, 143 S.E.2d 411 (1965) (“ ‘As a general rule, the question of defective notice may be raised only by the one on whom attempted service was made, and one defendant is not entitled to urge defects in the service on a co-defendant.’ ” (citation omitted)).

Nevertheless, citing cases like Brown v. Clower, 225 Ga. 165, 166, 166 S.E.2d 363 (1969), Oasis argues that the purpose of the local legislation notice statute is to protect the interests of the public. See id. at 166, 166 S.E.2d 363 (“[T]he purpose of the advertisement as to local legislation ... is to ‘protect the people against covert or surprise legislation.’ ” (citation omitted)). The cases Oasis cites, however, were decided at a time when the only notice required was by newspaper publication. See Ga. Const. of 1945, Art. III, Sec. VII, Par. XV (requiring that notice of intention to introduce a local bill be published in the newspaper in the affected area). This general notice requirement was meant to protect both the public and the affected local government. See Fleming v. Daniell, 221 Ga. 43, 45, 142 S.E.2d 804 (1965) (explaining that one of the main purposes of the constitutional notice requirement was “to prevent duties and obligations being imposed on local governments without giving those in charge of such governments an opportunity to oppose their passage.”). This continued to be the law under the 1983 Constitution, with the notice requirement placed in OCGA § 28–1–14.

In 1996, however, the government notice requirement was separated from the public notice requirement, with the addition to the statute of subsection (b). See Ga. L. 1996, p. 1198. The title of the 1996 act explained that OCGA § 28–1–14 was being amended “to provide that a notice of intention to introduce local legislation be provided...