Hines
ATLANTA (Legal Newsline) - The Georgia Supreme Court ruled last week that a lower court must reconsider a strip club's request for an injunction against revisions to county ordinances.
The Court, in its opinion Friday, reversed a trial court's order denying a petition by Great American Dream Inc. d/b/a Pin Ups Night Club for an injunction.
Pin Ups, located in DeKalb County, holds a restaurant license as well as a license allowing it to sell alcoholic beverages by the drink. Its alcohol services end each day at a time in accord with county ordinances.
In addition to serving alcoholic beverages, it provides breakfast food from the time drink service ends until 7 a.m. daily, when the club closes. It reopens at 9 a.m.
In June 2010, the DeKalb County Board of Commissioners amended its ordinances to provide that one hour after the end of the legal period for selling alcoholic beverages, the business must be cleared of customers, close and not reopen until 9 a.m.
Pin Ups, naming the board, its members and DeKalb County as defendants, filed a petition seeking temporary and permanent injunctive relief from the operation of the ordinances, as well as damages, attorney fees and a declaratory judgment.
The trial court denied a temporary restraining order.
A hearing was held on the club's request for an injunction and, after "balancing the equities between the parties," the trial court denied Pin Ups injunctive relief pending trial.
The club asserts that in doing so, the trial court applied an "incorrect standard" to analyze the impact of the ordinances upon its free speech rights.
The state's high court, in its seven-page opinion, said to evaluate that claim, it must be determined whether Pin Ups asserted violations of a right under the First Amendment of the U.S. Constitution, or under the Georgia Constitution.
"The distinction is important; this Court recently reiterated that our precedents have established that Georgia's constitutional protection of free speech is broader than that provided by the First Amendment," Justice P. Harris Hines noted.
In its petition, Pin Ups specified that the ordinances violate the Georgia Constitution. There was no mention of the First Amendment.
"As Pin Ups alleged a violation of free speech rights under the Georgia Constitution, the trial court erred in applying the rational basis test," Hines wrote.
"The entertainment activity at issue has been recognized as expressive conduct protected under our Constitution's free speech clause."
The county argues that the ordinances are justified on the grounds of combating the "undesirable secondary effects" of businesses that sell alcoholic beverages by promoting enforcement of required closing times.
The ordinances, it contends, are considered content neutral.
"A content-neutral regulation that incidentally affects protected expression must undergo something more than the rational basis test. Such a law can be upheld only '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,'" Hines wrote.
"Inasmuch as the trial court made its ruling based upon an incorrect legal standard, we must reverse its decision and remand the case to that court for it to evaluate Pin Ups' request for injunctive relief using the correct legal standard," he concluded.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.