CopyCited 4 times | Published | Supreme Court of Georgia | Mar 8, 2022 | 313 Ga. 364
...GEORGIA ASSOCIATION OF
CLUB EXECUTIVES; and vice versa.
ELLINGTON, Justice.
This appeal and cross-appeal concern the constitutionality of
statutory provisions imposing an annual assessment on “adult
entertainment establishment[s],” as that phrase is defined in OCGA
§
15-21-201 (1) of the Safe Harbor/Rachel’s Law Act.1 In Case No.
S21A0899, Lynnette T....
...Riley, the former State Revenue
Commissioner, appeals from a partial grant of summary judgment
in favor of the petitioner below, the Georgia Association of Club
Executives (“GACE”), contending that the trial court erred by
permanently enjoining the enforcement of OCGA §
15-21-201 (1) (B)
– one of the definitions of “adult entertainment establishment” –
1 Ga....
...with direction that Riley be dismissed from the action.
Judgments vacated and cases remanded with direction in Case
Nos. S21A0899 and S21X0900. All the Justices concur.
10
Decided March 8, 2022.
OCGA §
15-21-201; constitutional question....
Published | Supreme Court of Georgia | Oct 31, 2024
...described “organization of adult entertainment clubs in Georgia,”
challenges the constitutionality of a “state operating assessment”
imposed by OCGA §
15-21-209 (the “Assessment” or “Tax”) on “adult
entertainment establishments” as defined by OCGA §
15-21-201 (1)
(A)....
...entertainment clubs in Georgia” and asserts that its members are
subject to the “state operating assessment” imposed by OCGA § 15-
21-209 (a) because they are “adult entertainment establishments”
4
as defined by OCGA §
15-21-201 (1) (A).1
(a) The Assessment
OCGA §
15-21-209 (a)2 says:
By April 30 of each calendar year, each adult
entertainment establishment shall pay the commissioner
of revenue a state operation assessment equal...
...g, health
services, and social services . . . to sexually exploited children” and
to fund “a person, entity, or program devoted to awareness and
prevention of becoming a sexually exploited child.” OCGA § 15-21-
202 (c).3
Under OCGA §
15-21-201 (1) (A), 4 an “adult entertainment
3 The money may also be used for “the actual and necessary operating
expenses” of the commission charged with disbursing money from the fund, but
the “primary purpose of the fund ....
...to the definition of “adult entertainment establishment” under OCGA § 15-21-
201 (1) (B), it does not challenge the trial court’s rulings on that issue. Instead,
the focus of GACE’s arguments on appeal relate to an “adult entertainment
establishment” under OCGA §
15-21-201 (1) (A), so our analysis here is limited
to that sub-paragraph.
6
establishment” is defined as
any place of business or commercial establishment where
alcoholic beverages of any kind are sold, possessed, or
consumed wherein ....
...5 “Substantially nude” is defined as “dressed in a manner so as to display
any portion of the female breast below the top of the areola or displaying any
portion of any person’s pubic hair, anus, cleft of the buttocks, vulva, or
genitals.” OCGA §
15-21-201 (7).
7
to sexually exploit children....
...United States Constitution.” GACE sought a declaratory judgment
declaring that “the tax is an unconstitutional restriction on free
speech,” unconstitutionally vague, and also requested injunctive
relief.7 The trial court entered orders in 2020 concluding that part of
OCGA §
15-21-201 was void for vagueness, that part was subject to
severance, and all other portions of the Assessment were
constitutional and enforceable....
...of Club Executives,
313 Ga. 364, 367 (870
SE2d 405) (2022). On remand, GACE amended its complaint to
substitute Robyn Crittenden, in her individual capacity as the then-
current Revenue Commissioner, as the defendant in place of Riley,
and to add a claim that OCGA §
15-21-201 (1) (A) was
unconstitutionally overbroad....
...exploitation of minors; their express purpose is unrelated to the
suppression of speech; and any incidental restriction of the
expressive ‘speech’ of nude dancing is no greater than essential to
further the important governmental interest.” The court also
concluded that OCGA §
15-21-201 (1) (A) is not overbroad....
...tertainment
or activity therein consists of nude or substantially nude persons
dancing with or without music or engaged in movements of a sexual
nature or movements simulating sexual intercourse, oral copulation,
sodomy, or masturbation.” OCGA §
15-21-201 (1) (A). The nude
dancing referenced in OCGA §
15-21-201 (1) (A) is a form of
expressive conduct that is protected by the First Amendment of the
United States Constitution, although only barely....
...Specifically, GACE notes that the Assessment applies
when the nude dancing is provided as “entertainment” and when
nude performers are “engaged in movements of a sexual nature or
movements simulating sexual intercourse, oral copulation, sodomy,
or masturbation.” OCGA §
15-21-201 (1) (A)....
...satisfies intermediate scrutiny. 25
3. GACE’s overbreadth claim fails.
GACE concludes with a brief argument that the Assessment is
overbroad because the definition of “adult entertainment
establishment” under OCGA §
15-21-201 (1) (A) contains several
in protected expression....
...substantial amount of protected activity by third parties. GACE
argues that the Assessment could apply to venues that feature
traditional shows with risqué content or host entertainers known for
wearing revealing attire that would qualify as “substantially nude”
under OCGA §
15-21-201 (1) (A), as well as hotels or movie theaters
(those that serve alcohol) where movies with sexual content is
available....
...See Scott v. State,
299 Ga. 568,
570 (1) (788 SE2d 468) (2016). But we need not do so
comprehensively here. GACE’s overbreadth argument focuses
exclusively on a single aspect of the definition of “adult
entertainment establishment” contained in OCGA §
15-21-201 (1).
The challenged part of the definition provides that an
establishment qualifies (and thus other provisions of the Act then
subject it to the Assessment) if “[t]he entertainment or activity
therein consists of nude or substantially nude persons dancing with
52
or without music or engaged in movements of a sexual nature or
movements simulating sexual intercourse, oral copulation, sodomy,
or masturbation[.]” OCGA §
15-21-201 (1) (A)....
...of the establishment’s business, some marginal activity of
“substantial nudity” would not trigger the statute. Because the nude
or substantially nude activity must be the essential component of
the entertainment offered, GACE cannot show that the text of
OCGA §
15-21-201 (1) (A) is substantially overbroad.
Nor can it show “from actual fact” that the statutory definition
is substantially broad....
...As a result, GACE has
not met its burden of showing “from actual fact, that substantial
overbreadth exists.”
*
Because the Assessment imposed on “adult entertainment
establishments” as defined in OCGA §
15-21-201 (1) (A) satisfies
intermediate scrutiny under O’Brien and is not overbroad, GACE’s
First Amendment claims fail....
...therein consists of nude or substantially nude persons dancing with
or without music or engaged in” particular movements, OCGA § 15-
21-201 (1) (A), and in which alcohol is sold.
The nude dancing performed in the clubs that are members of
GACE and that is referenced in OCGA §
15-21-201 (1) (A) has been
held by the United States Supreme Court to be a form of expressive
conduct protected by the First Amendment of the United States
Constitution....
...Specifically, I agree that GACE
bears the burden of showing that the Assessment is unlawful and that it must
do so by showing that the Assessment’s constitutional infirmities are clear and
palpable. And I agree that the nude dancing referenced in OCGA §
15-21-201
(1) (A) is a form of expressive conduct protected by the First Amendment,
however minimally the United States Supreme Court has characterized that
protection....
...exploited children, and that the Assessment fails the fourth prong of
the O’Brien intermediate-scrutiny test. See
391 U.S. at 377.
*
Because the Assessment as imposed on “adult entertainment
establishments” defined in OCGA §
15-21-201 (1) (A) does not
survive intermediate scrutiny under O’Brien, I would conclude that
it violates the First Amendment to the United States Constitution.
I would therefore reverse the trial court’s order denying summary
judgment to...
