Posted in

Eleventh Circuit Court of Appeals Dismisses First Amendment Challenges to Adult-Entertainment Ordinance

This post was authored by Matthew Loescher, Esq.

In 2003, the City of Augusta, Georgia enacted an adult-entertainment ordinance with the stated purpose of combating negative secondary effects associated with adult-oriented businesses. The owners and operators of two longstanding nude-dancing clubs in downtown Augusta, the Discotheque Lounge and Joker’s Lounge, sued the City and others claiming that the ordinance and related regulations violated the First Amendment. The district court granted summary judgment to the City on some claims and held that the plaintiffs lacked standing on other claims, and this appeal followed.

On appeal, Plaintiffs first argued that the 2003 Ordinance’s prohibition on transferring adult-entertainment permits was subject to, and failed, strict scrutiny. Plaintiffs contended that the predominant purpose of the ordinance was to eliminate adult live entertainment in Augusta. Plaintiffs further argued that because the ordinance expressly subjected some businesses to restrictions based on the content of the expression they offered, it must be evaluated as a content-based regulation under the Supreme Court’s decision in Reeds. The court found that while Plaintiffs asserted that other adult clubs had closed since the ordinance passed, but they made no effort to connect those closures to the ordinance. Additionally, while Plaintiffs cited the City’s prior ban on alcohol in adult businesses—which has since been repeated—but that was insufficient on its own, since the court previously upheld “nude-dancing-while-selling-alcohol bans” under the secondary- effect doctrine. As Plaintiffs failed to cast direct doubt on the secondary-effects rationale, the district court properly reviewed the 2003 Ordinance under intermediate scrutiny.

The court next found that Plaintiffs failed to show that the prohibition on transferring adult-entertainment permits, § 6-1-15, was not narrowly tailored or otherwise failed to “allow for reasonable alternative avenues of expression.” Furthermore, the non-transferability provision furthered the City’s permitting scheme for adult-entertainment businesses, and its goal of reducing secondary effects, by ensuring that the current owners or operators of such businesses were evaluated by and received their permits directly from the City. It also protects the interests of existing businesses while allowing the City to gradually transition to the new-location requirements. Additionally, nothing in the non-transferability provision prevented Plaintiffs, following the death of a prior owner, from applying for their own permit to operate the business. Since § 6-1-15 survived constitutional scrutiny, the court affirmed the dismissal of Plaintiffs’ claims.

Discotheque, Inc. v August-Richmond County, 2022 WL 5877263 (11th CIR CA 10/5/2022)