WBY, Inc. v. City of Chamblee, Georgia
OPINION AND ORDER: Follies's motion for partial summary judgment 118 is DENIED; Chamblee's motion for summary judgment 120 is GRANTED; and Follies's motion to strike 136 is DENIED. The Clerk is DIRECTED to enter judgment in favor of Chamblee on all of Follies's claims. Further, Chamblee's counterclaims are DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to close this case. Signed by Judge Steven D. Grimberg on 07/15/21. (aaq)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
WBY, INC. d/b/a FOLLIES,
CITY OF CHAMBLEE, GEORGIA,
Civil Action No.
OPINION AND ORDER
Plaintiff WBY, Inc. d/b/a Follies (hereafter, Follies) is a strip club located in
Chamblee, Georgia. Follies’s business model centers around offering fully nude
dancing, selling alcohol to its patrons, and remaining open until the early hours of
the morning. In 2018, Defendant City of Chamblee, Georgia (hereafter, Chamblee)
enacted ordinances essentially prohibiting Follies from providing those services.
In response, Follies initiated this lawsuit. After pursuing an unsuccessful motion
for a preliminary injunction, Follies filed the operative Second Amended
Complaint. Follies asserts a total of twelve claims against Chamblee. Only Counts
I, III, V, VII, IX, and XI constitute substantive causes of action:
Counts I and III allege violations of Follies’s freedom of speech under the
First and Fourteenth Amendments to the U.S. Constitution and related
provisions of the Georgia Constitution;
Counts V and VII allege the impermissible impairment of contract under the
U.S. Constitution and Georgia Constitution;
Count IX alleges violations of the First and Fourteenth Amendments to the
U.S. Constitution relating to Chamblee’s Alcohol Code; and
Count XI alleges violations of the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution and corresponding provisions of the
Before the Court are cross-motions for summary judgment.2 For the
following reasons, Chamblee’s motion for summary judgment [ECF 120] is
GRANTED and Follies’s motion for partial summary judgment [ECF 118] is
DENIED. Follies has also filed an independent motion to strike [ECF 136], which
Counts II, IV, VI, VIII, X, and XII seek various injunctive and monetary
remedies for those substantive claims.
Follies seeks partial summary judgment as to Counts I, II, V, VI, IX, and X.
Chamblee requests full summary judgment on all of Follies’s claims.
Follies requests that the Court strike Chamblee’s “reply” to its initial statement
of material facts submitted in support of its motion for summary judgment.
Follies is correct that none of the Federal Rules, Local Rules, or this Court’s
Standing Order expressly permit such a reply. However, Federal Rule of Civil
Procedure 12(f) only grants the Court authority to strike pleadings. Fed. R. Civ.
P. 12(f). A reply brief is not a pleading. Although Chamblee’s “reply” is largely
argumentative and not overly helpful in adjudicating the pending motions, the
Follies opened for business during 1992 in then-unincorporated DeKalb
County, Georgia.4 In June 2001, Follies—and other similar establishments—
entered into a settlement agreement with DeKalb County that: (1) resolved
pending litigation over DeKalb County’s ordinances governing strip clubs and
(2) granted Follies—upon payment of an annual fee—non-conforming status to
offer fully nude dancing, sell alcohol, and remain open until 4:55 am (the DeKalb
Agreement).5 In November 2013, Chamblee incorporated as an independent city
and annexed territory from DeKalb County, thereby subsuming Follies’s physical
location.6 Although Chamblee quickly enacted a resolution rejecting the notion
that incorporation bound it to the DeKalb Agreement, it nonetheless permitted
Follies to continue its operations largely unabated.7 Follies subsequently obtained
an alcohol license from Chamblee for each of the years 2014 through 2018.8
Court ascertains no persuasive justification to entirely strike it. Therefore,
Follies’s motion is denied.
ECF 4-2, ¶ 9 (Youngelson Aff.); ECF 129, ¶ 1.
ECF 128-1, ¶¶ 6, 8. See also ECF 39-3 (DeKalb Agreement).
Id. ¶ 4.
Id. ¶ 7.
Id. ¶ 11.
Things changed in 2018. Chamblee decided to enact significant changes to
its municipal codes. In February, Chamblee adopted Ordinance 745.
That ordinance amended its Alcohol Code and required Follies to stop selling
alcohol by 2:00 am (11:59 pm on Saturday nights) and close by 2:30 am.9
Follies challenged the constitutionality of that ordinance in a separate litigation.10
Later that fall, Chamblee amended its regulations governing strip clubs and
alcohol-serving establishments.11 Ordinance 752 (colloquially referred to as
the Adult Code) imposes three relevant restrictions. First, it prohibits any “patron,
employee, or any other person” from “knowingly or intentionally, in an adult
establishment, appear[ing] in a state of nudity.”12 Second, Ordinance 752 outlaws
the sale, possession, use, or consumption of alcohol at a strip club.13 Finally,
Ordinance 752 requires such establishments to close at midnight.14
On the same day, Chamblee also adopted Ordinance 754. That ordinance
amended a portion of Chamblee’s Alcohol Code to render strip clubs categorically
Id. ¶ 20. See also ECF 117-2 (Ordinance 745).
See Civil Action No. 1:18-cv-02739 (N.D. Ga.).
ECF 10-2 (Ordinance 752); ECF 10-3 (Alcohol Code); ECF 39-2 (Ordinance 754).
ECF 10-2, § 22-115(a).
Id. § 22-115(d).
Id. § 22-118.
ineligible from applying for or obtaining an alcohol license.15 That ordinance also
altered the method for an establishment to qualify as a restaurant—and thereby
gain eligibility to obtain an alcohol license—by requiring the applicant to “[d]erive
at least 50 percent of total revenue from the sale of food prepared and consumed
on the premises and nonalcoholic beverages consumed on the premises.”16
Prior to passing Ordinance 752 and Ordinance 754, Chamblee prepared,
received, and considered a voluminous evidentiary record.17 That evidence
detailed a plethora of negative secondary effects associated with strip clubs and
other sexually oriented businesses, particularly those that sell and serve alcohol.
For example, Chamblee relied on at least seventy-two relevant judicial decisions
and thirty-eight evidentiary reports discussing societal concerns across the United
States and in the local community.18 Included amongst this evidence were: (1) a
2001 Fulton County study supporting the separation of adult and alcohol-serving
ECF 39-2, § 6-54(j).
Id. § 6-142 (hereafter, the Restaurant Qualifications). Before the passage of
Ordinance 754, the prior version of Chamblee’s Alcohol Code required an
establishment to “[d]erive at least 50 percent of total sales from the sale of food
and nonalcoholic beverages consumed on the premises, exclusive of sales from
vending machines” to qualify as a restaurant [ECF 41-8, at 22 § 6-142(a)(5)].
ECF 128-1, ¶ 30. See also ECF 10-1; ECF 11; ECF 12; ECF 13; ECF 14.
ECF 128-1, ¶ 31.
establishments;19 (2) investigator affidavits detailing various crimes, alcohol
abuse, drug trafficking, and other events occurring in and around sexually
oriented businesses in Forest Park and Sandy Springs, Georgia;20 and (3) testimony
from DeKalb County police officers concerning the prevalence of prostitution,
drug sales, firearm possession, and other crimes at local strip clubs, specifically
including Follies.21 Chamblee cited many of these opinions and reports in the
challenged ordinances themselves.22
According to Follies, the combination of these ordinances sounds the death
knell for its business. If it cannot provide fully nude dancing, sell alcohol, and
remain open after midnight—avers Follies—it will be forced to permanently cease
operations. Follies maintains that Chamblee knows this to be true, as it enacted
these ordinances—after tracking substantially similar litigation involving nearby
newly-incorporated cities such as Sandy Springs, Brookhaven, and Doraville—to
serve this exact purpose. Put another way, Follies alleges Chamblee disagrees with
ECF 10-2; ECF 39-2.
the content of its expression and amended the municipal codes to drive Follies out
Summary judgment is appropriate when “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment
has the initial burden of informing the district court of the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant
meets its burden, the non-movant must present evidence showing either
(1) a genuine issue of material fact or (2) that the movant is not entitled to
judgment as a matter of law. Id. at 324. The filing of cross-motions for summary
judgment does not alter this standard, “but simply requires a determination of
whether either of the parties deserves judgment as a matter of law on the facts that
are not disputed. GEBAM, Inc. v. Inv. Realty Series I, LLC, 15 F. Supp. 3d 1311, 1315–
16 (N.D. Ga. 2013) (citing Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331
(11th Cir. 2005)). See also United States v. Oakley, 744 F.2d 1553, 1555–56 (11th Cir.
In analyzing a motion for summary judgment, the Court must “view all of
the evidence in a light most favorable to the nonmoving party and draw all
reasonable inferences in that party’s favor.” Newcomb v. Spring Creek Cooler Inc.,
926 F.3d 709, 713 (11th Cir. 2019). But the non-movant cannot “rest upon the mere
allegations or denials of [its] pleading, but must set forth specific facts showing
that there is a genuine issue for trial.” Sears v. Roberts, 922 F.3d 1199, 1207 (11th Cir.
2019). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986). If the non-movant relies on evidence that is “merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). See also Tesoriero v. Carnival
Corp., 965 F.3d 1170, 1177 (11th Cir. 2020) (“Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.”). Further, the offering of “mere conclusions and
unsupported factual allegations” is “legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
Follies contends that Chamblee committed a number of constitutional
violations. The Court addresses each general category of constitutional claim in
Follies’s Free Speech Claims
Follies alleges Ordinance 752 and Ordinance 754 violate its freedom of
speech rights under the First Amendment and related provisions of the Georgia
Constitution. States and municipal governments are prohibited from enacting
laws that abridge the freedom of speech or expression. U.S. Const., amends. I, XIV.
See also Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). The validity of a speech
restriction “depends upon the type of speech and the type of forum being
regulated.” Gold Coast Publ’ns, Inc. v. Corrigan, 42 F.3d 1336, 1344 (11th Cir. 1994).
A content-based regulation—which outlaws “particular speech because of the
topic discussed or the idea or message expressed”—is “presumptively
unconstitutional” and permissible “only if the government proves that [it is]
narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 163.
See also Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1308 (11th Cir. 2017)
(“Content-based restrictions on speech normally trigger strict scrutiny.”).
Nude dancing is a form of protected expressive conduct, albeit “fall[ing]
only within the outer ambit of the First Amendment’s protections.” City of Erie v.
Pap’s A.M., 529 U.S. 277, 289 (2000). See also Maxim Cabaret, Inc. v. City of Sandy
Springs, 304 Ga. 187, 191 (2018) (“It is true that both the First Amendment and the
free speech provision of the Georgia Constitution have been held to protect nude
dancing as a form of expressive conduct.”). After adoption of Ordinance 752,
Follies may no longer offer fully nude dancing. Neither can it sell or serve alcohol
to its patrons. In fact, Ordinance 754 excludes Follies from applying for an alcohol
Although at first blush these ordinances “may appear to be content based
because they target adult entertainment,” it is axiomatic that “adult-entertainment
ordinances are not treated like other content-based regulations.” Flanigan’s Enters.,
Inc. of Ga. v. City of Sandy Springs, 703 F. App’x 929, 933 (11th Cir. 2017)
(Flanigan’s II)23 (citing Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cnty.,
630 F.3d 1346, 1354 (11th Cir. 2011) (Peek-A-Boo II)). Laws enacted not on the basis
of any content or message expressed, but to “combat the undesirable secondary
effects of [sexually oriented] businesses are to be reviewed under the standards
applicable to ‘content-neutral’ time, place, and manner regulations.” City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986). Pursuant to this “secondary-effects”
doctrine, such ordinances are subject to lesser, intermediate, scrutiny. City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring)
The Eleventh Circuit has authored several opinions originating from the
Flanigan’s litigation. For purposes of this Order, the Court will refer to the
published 2010 opinion as Flanigan’s I and the unpublished 2017 opinion as
(“A zoning restriction that is designed to decrease secondary effects and not
speech should be subject to intermediate rather than strict scrutiny.”);
Zibtluda, LLC v. Gwinnett Cnty. ex rel. Bd. of Comm’rs, 411 F.3d 1278, 1284 (11th Cir.
2005) (“The Supreme Court has made clear that when the purpose of an adult
entertainment ordinance is to ameliorate the secondary effects of adult businesses,
intermediate scrutiny applies.”). The Court must apply a three-part test to
determine if the challenged ordinances are constitutional:
[F]irst, the court must determine whether the ordinance
constitutes an invalid total ban or merely a time, place,
and manner regulation; second, if the ordinance is
determined to be a time, place, and manner regulation,
the court must decide whether the ordinance should be
subject to strict or intermediate scrutiny; and third, if the
ordinance is held to be subject to intermediate scrutiny,
the court must determine whether it is designed to serve
a substantial government interest and allows for
reasonable alternative channels of communication.
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 337 F.3d 1251, 1264 (11th Cir.
2003) (Peek-A-Boo I) (citing Renton, 457 U.S. at 46–50; Alameda Books, 535 U.S. at 433–
45 (2002) (plurality opinion)).
The Eleventh Circuit and Georgia Supreme Court have repeatedly applied
the secondary-effects doctrine to reject substantially similar challenges to
municipal ordinances that prohibit conduct such as fully nude dancing, the sale of
alcohol, or early-morning closing times. See, e.g., Flanigan’s II, 703 F. App’x 929;
Cornell Rest. Ventures, LLC v. City of Oakland Park, 681 F. App’x 859 (11th Cir. 2017);
Peek-A-Boo II, 630 F.3d 1346; Curves, LLC v. Spalding Cnty., 685 F.3d 1284 (11th Cir.
2012); Flanigan’s Enters., Inc. of Georgia v. Fulton Cnty., 596 F.3d 1265 (11th Cir. 2010)
(Flanigan’s I); Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir.
2007); Peek-A-Boo I, 337 F.3d 1251; Maxim Cabaret, 304 Ga. 187; Oasis Goodtime
Emporium I, Inc. v. City of Doraville, 297 Ga. 513 (2015); Trop, Inc. v. City of
Brookhaven, 296 Ga. 85 (2014); Parker v. Whitfield Cnty., 265 Ga. 829 (1995); Gravely
v. Bacon, 263 Ga. 203 (1993). Follies largely does not address these cases, nor much
of the three-part test articulated in Renton/Alameda Books. Accordingly, the Court
need not belabor its analysis under those factors.
First, the cumulative effect of Ordinance 752 and Ordinance 754 is not a total
ban on protected, expressive conduct. Although Follies may no longer offer fully
nude dancing, its dancers are free to continue engaging in semi-nude, erotic
performances. The Eleventh Circuit has found similar prohibitions on full nudity
in adult entertainment clubs constitutional within the Renton framework. Fly Fish,
Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1308 (11th Cir. 2003) (“If the message of
nude dancing is eroticism, then Ordinance 1204 may properly be characterized as
a Renton-type of time, place, or manner regulation. It does not ban erotic dancing,
but rather totally nude dancing in an adult entertainment establishment.
Therefore, it merely regulates the manner of presentation of the erotic message.
It does not ban the message; it only requires more clothing on the messenger.”).
See also Erie, 529 U.S. at 301 (“The requirement that dancers wear pasties and Gstrings is a minimal restriction in furtherance of the asserted government interests,
and the restriction leaves ample capacity to convey the dancer’s erotic message.”);
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571 (1991) (“[T]he requirement that the
dancers don pasties and G-strings does not deprive the dance of whatever erotic
message it conveys; it simply makes the message slightly less graphic.”); Daytona
Grand, 490 F.3d at 886 (finding the “requirement that dancers wear G-strings and
pasties in all adult theaters” constitutional). The same is true for alcohol bans.
See Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 999 (11th Cir. 1998)
(“[W]e are unaware of any constitutional right to drink while watching nude
dancing.”); Oasis Goodtime Emporium I, 297 Ga. at 525 (“Serving alcohol is not itself
protected expression, and [the city’s code] leaves Oasis’s employees free to express
themselves as they wish through dance or otherwise.”).
Second, the Court must determine whether to apply strict or intermediate
scrutiny. This decision is
based on the government’s interest in enacting the
challenged ordinance. If the government sought to
restrict the adult-entertainment-related speech because
of the speech’s content, then the ordinance must be
evaluated under strict scrutiny. But if the government
intended to combat the “secondary effects” of adult
entertainment in the surrounding community—
i.e., increased crime, decreased property values, etc.—
then the ordinance is held to intermediate scrutiny. In
other words, intermediate scrutiny applies if the
ordinance can be justified without reference to the
content of the regulated speech.
Flanigan’s II, 703 F. App’x at 934 (citing Renton, 475 U.S. at 48; Peek-A-Boo I, 337 F.3d
at 1264–65 & n.14). See also Zibtluda, 411 F.3d at 1285 (stating that, for “the second
step of the Renton inquiry . . . the key question is whether the county has
demonstrated that the purpose of the [ordinance] is to combat negative secondary
effects of adult businesses”).
The burden for “establishing this purpose is not high.” Zibtluda, 411 F.3d at
1285. As explained by the Eleventh Circuit, the Supreme Court in Renton “looked
no further than the ordinance itself, which recited as its purpose the protection and
preservation of the quality of life in the city.” Id. (citing Renton, 475 U.S. at 48). At a
minimum, the municipality “must cite to some meaningful indication—in the
language of the code or in the record of legislative proceedings—that the
legislature’s purpose in enacting the challenged statute was a concern over
secondary effects rather than merely opposition to proscribed expression.” Id.
(quoting Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1283 (11th Cir. 2001)).
See also Maxim Cabaret, 304 Ga. at 192 (“The express purpose of the challenged
regulations is to combat the criminal activities and other undesirable secondary
effects of the commercial combination of live nudity and alcohol. Thus,
intermediate scrutiny applies.”).
Intermediate scrutiny applies in this case. Chamblee’s goal of counteracting
and preventing the deleterious secondary effects associated with sexually oriented
businesses—including criminal activity—is codified within the challenged
ordinances themselves.24 In other words, Chamblee provides ample justification
on the face of the ordinances that does not target, and is unrelated to, the content
of any speech or expression. And, as stated, Chamblee considered and relied on a
vast trove of evidence detailing these negative secondary effects. In response,
Follies contends Chamblee possessed an illicit motive in enacting the ordinances.
The Court more thoroughly addresses this retort below. But at step two of the
Renton framework, the Court finds Chamblee has met its burden.
Finally, the Court must apply the parameters of intermediate scrutiny: i.e.,
determine whether the ordinances are “designed to serve a substantial
government interest and allow[ ] for reasonable alternative channels of
ECF 10-2, at 1–6; ECF 39-2, at 6-9.
communication.” Peek-A-Boo I, 337 F.3d at 1264. See also Maxim Cabaret, 304 Ga. at
192 (citing Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 255-256 (1982)). “It has
been by now clearly established that reducing the secondary effects associated
with adult businesses is a substantial government interest ‘that must be accorded
high respect.’” Daytona Grand, 490 F.3d at 873–74 (quoting Alameda Books, 535 U.S.
at 444 (Kennedy, J., concurring)). See also Erie, 529 U.S. at 296 (“The asserted
interests of regulating conduct through a public nudity ban and of combating the
harmful secondary effects associated with nude dancing are undeniably
important.”). The Eleventh Circuit has articulated the following burden-shifting
In determining whether the ordinance meets this
standard [of intermediate scrutiny], the county or
municipality first bears the initial burden of producing
the evidence that it has relied on to reach the conclusion
that the ordinance furthers its interest in reducing
secondary effects. If the governmental entity has
produced evidence that it reasonably believed to be
relevant to its rationale for enacting the ordinance, then
the burden shifts to the plaintiff to cast direct doubt on
this rationale, either by showing that the evidence does
not support its rationale or by producing evidence
disputing the local government’s factual findings. If the
plaintiff sustains its burden, the burden shifts back to the
government to supplement the record with evidence
renewing support for a theory that justifies the
Peek-A-Boo II, 630 F.3d at 1355 (citations and punctuation omitted).
A municipality is permitted to rely upon “whatever evidence . . . is
reasonably believed to be relevant to the problem that the city addresses.” Renton,
475 U.S. at 52. It is not required to “conduct local studies or produce evidence
independent of that already generated by other municipalities to demonstrate the
efficacy of its chosen remedy.” Peek-A-Boo I, 337 F.3d at 1265 (citing Erie, 529 U.S.
at 296; Renton, 475 U.S. at 51–52) (punctuation omitted). See also Daytona Grand, 490
F.3d at 875 (“Although a municipality must rely on at least some pre-enactment
evidence, such evidence can consist of a municipality’s own findings, evidence
gathered by other localities, or evidence described in a judicial opinion.”). At a
minimum, the municipality’s proffered evidentiary record “must fairly support its
rationale.” Id. (citing Alameda Books, 535 U.S. at 438 (plurality opinion), at 451–53
(Kennedy, J., concurring)).
Chamblee considered a voluminous evidentiary record detailing the
negative secondary effects—including prostitution, violence, alcohol abuse, drug
sales, and other crimes—associated with strip clubs that serve alcohol and
maintain late-night closing times. The Eleventh Circuit has found substantially
verbatim bodies of evidence sufficient to justify similar municipal ordinances in
other recently incorporated Georgia cities. Cornell, 681 F. App’x at 865
(“[T]he record relied upon by the City—including judicial opinions and reports
and studies that had been prepared for other municipalities—is virtually the same
legislative record that we found sufficient to meet the county’s burden in support
of the substantially similar regulations at issue in Peek-A-Boo II.”). Follies raises no
objection to the substance of Chamblee’s proffered evidence. The Court finds
Chamblee has articulated a substantial government interest and permits adequate
alternative channels of communication, i.e., semi-nude erotic dancing. Therefore,
Chamblee’s ordinances pass constitutional muster under Renton/Alameda Books.
Follies attempts to make three overarching legal distinctions to dispel the
Renton/Alameda Books framework: that (1) strict scrutiny should apply because
Chamblee possessed the illicit motive of specifically targeting and shutting down
strip clubs; (2) strict scrutiny should apply under the Supreme Court’s decision in
Reed; and (3) even if intermediate scrutiny is applied, the ordinances are
unconstitutional under the “proportionality test” articulated by Justice Kennedy’s
concurring opinion in Alameda Books. The Court addresses each argument in turn.
Chamblee’s Alleged Motive in Enacting the
Ordinances Does Not Demand Application of Strict
Follies argues the secondary-effects test is inapplicable—and the Court
should instead apply strict scrutiny—because Chamblee’s true motive and desire
in acting the ordinance was not community well-being, but to target and shut
down strip clubs because of the content of their expression. An aggrieved party
may challenge an ordinance that relies upon the secondary-effects rationale “either
by demonstrating that the municipality’s evidence does not support its rationale,
or by furnishing evidence that disputes the municipality’s factual findings.” PeekA-Boo I, 337 F.3d at 1265 (citing Alameda Books, 535 U.S. at 439 (plurality opinion)).
Follies pursues neither option; it does not dispute any of Chamblee’s evidence or
present its own contradicting Chamblee’s findings. Instead, it alleges Chamblee
modeled its ordinances after similar laws passed, and successfully defended, by
neighboring cities. According to Follies, Chamblee tracked the litigation between
those cities and other strip clubs to ensure its own ordinances would ultimately
eliminate Follies’s business model. This is evident, avers Follies, because
Chamblee’s current legal counsel represented many of those cities in their
Follies argument falls short of demonstrating that Chamblee acted with the
intent to suppress speech. At best, Follies’s evidence shows that various Chamblee
officials were aware of pending litigation and, after each city prevailed, strip clubs
subsequently closed. Follies does not show, however, that those officials
specifically enacted these ordinances to shut Follies down. Follies relies solely on
speculation, which is not sufficient. See Renton, 475 U.S. at 48 (“It is a familiar
principle of constitutional law that this Court will not strike down an otherwise
constitutional statute on the basis of an alleged illicit legislative motive.”) (quoting
United States v. O’Brien, 391 U.S. 367, 383 (1968)). Even assuming Follies’s
allegations to be true, Chamblee may rely on its neighboring cities’ successful
defenses of substantially similar ordinances. Indeed, doing so strengthens its
justification under the secondary-effects doctrine. See Peek-A-Book I, 337 F.3d at
1268 (“To satisfy Renton . . . evidence described in a judicial opinion [ ] may form
an adequate predicate to the adoption of a secondary effects ordinance.”).
See also Zibtluda, 411 F.3d at 1286 (stating that municipality may rely on “the
experience of other cities, studies done in other cities, caselaw reciting findings on
the issue, as well as the officials’ own wisdom and common sense”). Follies’s
argument “is entirely circumstantial, inferential, and remote”—Zibtluda, 411 F.3d
at 1288—and must be rejected.
The Supreme Court’s Decision in Reed v. Town of
Gilbert Is Not Applicable.
Follies also argues the Supreme Court’s decision in Reed compels the
application of strict scrutiny. In Reed, the Supreme Court found that a
municipality’s sign code constituted a content-based speech restriction because it
treated categories of signs differently based on the type of information conveyed.
576 U.S. at 159, 163–65. Relevant here, the Court held that “[a] law that is content
based on its face is subject to strict scrutiny regardless of the government’s benign
motive, content-neutral justification, or lack of animus toward the ideas contained
in the regulated speech.” Id. at 165 (punctuation omitted). See also id. at 166 (“In
other words, an innocuous justification cannot transform a facially content-based
law into one that is content neutral.”). The Court ultimately found the sign code
unconstitutional, as the municipality could not satisfy the high burden of strict
scrutiny. Id. at 171–73.
Relying on Reed, Follies argues Ordinance 752 and Ordinance 754 are
facially content-based because they target strip clubs and adult-oriented
businesses. So, avers Follies, strict scrutiny should apply irrespective of whatever
purported negative secondary effects Chamblee seeks to ameliorate as a proffered
justification. But as Follies concedes, this exact argument has been squarely
considered and rejected by the Eleventh Circuit.
In Flanigan’s II, the Eleventh Circuit acknowledged that “[t]here is no
question that Reed has called into question the reasoning undergirding the
secondary-effects doctrine.” 703 F. App’x at 935.25 Nonetheless, the panel declined
to interpret Reed as a complete overhaul because “the majority opinion in Reed did
In the Eleventh Circuit, unpublished decisions are not binding precedent, but
may be cited as persuasive authority. Fed. R. App. P. 32.1; 11th Cir. R. 36–2.
not address the secondary-effects doctrine” and, for that reason alone, the opinion
could not be read “as abrogating either the Supreme Court’s or this Circuit’s
secondary-effects precedents.” Id. Because binding “secondary-effects precedents
[were] on all fours with the adult-entertainment regulations” at issue in Flannigan’s
II, the Eleventh Circuit elected to “follow the . . . doctrine because it has direct
application in this case, notwithstanding that it may appear to rest on reasons
rejected in Reed.” Id. (citing Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S.
477, 484 (1989)). See also Maxim Cabaret, 304 Ga. at 192 n.4 (“Reed did not involve
secondary-effects legislation. Nor did the opinion in Reed mention, much less
overrule, prior cases in which the Supreme Court held that regulations designed
to reduce the negative secondary effects of adult entertainment businesses are
treated as content neutral and thus subject to an intermediate level of scrutiny.”).
The Court’s holding in Flannigan’s II is in accord with decisions from two
other federal appellate courts. See Free Speech Coal., Inc. v. U.S. Att’y Gen., 825 F.3d
149, 161 (3d Cir. 2016) (“Although we do not reach the issue, we agree with the
dissent that it is doubtful that Reed has overturned the Renton secondary effects
doctrine.”); BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015)
(“We don’t think Reed upends established doctrine for evaluating regulation of
businesses that offer sexually explicit entertainment, a category the Court has said
occupies the outer fringes of First Amendment protection.”).
Follies ostensibly argues that the Flanigan’s II and Maxim Cabernet courts got
it wrong. Indeed, Follies confirms that it has advanced this argument simply “to
preserve the issue for further review.”26 Its preservation is noted, but this Court
finds Follies’s argument to be unavailing.
The Proportionality Test Is Not Applicable.
Follies’s final argument is that, even if the Court applies intermediate
scrutiny, the ordinances should still be struck down because of the
disproportionate effect they have on its economic and commercial viability.
In Alameda Books, a plurality of the Supreme Court reaffirmed the three-part Renton
secondary-effects test and upheld a municipal ordinance dictating where sexually
orientated businesses could operate. 535 U.S. at 431–43 (plurality opinion).
Justice Kennedy penned a concurring opinion—not joined by any other Justice—
expressing his overarching belief that “a city may not regulate the secondary
effects of speech by suppressing the speech itself.” Id. at 445 (Kennedy, J.,
ECF 118-1, at 37.
Justice Kennedy took issue with two specific aspects of the plurality’s
opinion. First, he expressed his disagreement with the “content neutral”
classification underlying the secondary effects doctrine. Id. at 444–45. According
to Justice Kennedy, this is “something of a fiction” because “whether a statute is
content neutral or content based is something that can be determined on the face
of it; if the statute describes speech by content then it is content based.” Id. at 448
(“These ordinances are content based, and we should call them so.”).
See also Zibtluda, 411 F.3d at 1285 (“[A]lthough these ordinances are not strictly
content-neutral, they are simply treated as such.”).
Second, Justice Kennedy characterized the plurality opinion as “a subtle
expansion” of Renton. Id. at 444–45 (Kennedy, J., concurring). In his view, a
municipality “must advance some basis to show that its regulation has the purpose
and effect of suppressing secondary effects, while leaving the quantity and
accessibility of speech substantially intact.” Id. at 449 (emphasis added). Put another
way, Justice Kennedy explained that “[i]t is no trick to reduce secondary effects by
reducing speech or its audience; but a city may not attack secondary effects
indirectly by attacking speech.” Id. at 450. See also id. at 451 (“It is true that cutting
adult speech in half would probably reduce secondary effects proportionately. But
again, a promised proportional reduction does not suffice.”). The Eleventh Circuit
has since referred to Justice Kennedy’s concurrence as the “proportionality test.”
Flanigan’s II, 703 F. App’x at 936–37.
Relying on the proportionality test, Follies argues the challenged ordinances
are impermissible because their cumulative effect renders its business
economically unfeasible. According to Follies, it will be forced to permanently
close if the ordinances remain in place. And if that happens, the result will be the
suppression of protected speech—i.e., nude or erotic dancing—in the marketplace.
Like Follies’s argument regarding the effect of Reed, its reliance on Justice
Kennedy’s proportionality test runs headlong into a threshold obstacle: it too has
been considered and rejected by the Eleventh Circuit.27 In Flanigan’s II, the
Eleventh Circuit declined to adopt the proportionality test as the law of the Circuit.
703 F. App’x at 937. Recalling Reed, the Eleventh Circuit found persuasive that the
opinion “has called into question the fundamental underpinnings of the
secondary-effects doctrine, even suggesting that the doctrine may be abrogated,”
which “counsels against extending the doctrine based on the opinion of one
Follies’s reliance on the purported economic consequences of the ordinances
is also contrary to binding law. Renton, 475 U.S. at 54 (“The inquiry for First
Amendment purposes is not concerned with economic impact.”) (quoting
Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 78 (1976) (Powell, J., concurring)).
See also Int’l Food & Beverage Sys. v. City of Fort Lauderdale, 794 F.2d 1520, 1526
(11th Cir. 1986) (“[T]he first amendment does not guarantee anyone a profit.”).
Supreme Court Justice in one of his concurrences, which was based on a fact
pattern not present in this case.” Id. See also id. (“The question of whether to apply
the proportionality test would be a difficult one even if we were faced with the
same type of ordinance as that at issue in Alameda Books. But today we encounter
a variety of different ordinances, and we do so in a post-Reed jurisprudential
landscape.”). Crucially, the Court here faces substantially similar ordinances as
addressed in Flanigan’s II. Thus, that decision is both factually and legally on
point.28 The Court will follow it here.29
In sum, applying intermediate scrutiny under the secondary-effects
doctrine, the Court finds Ordinance 752 and Ordinance 754 are permissible
The Sixth Circuit has also expressly rejected Follies’s argument. Ent. Prods., Inc.
v. Shelby Cnty., 721 F.3d 729, 741–42 (6th Cir. 2013).
The Court agrees that it is somewhat challenging to square Flannigan’s II’s
holding that “Justice Kennedy’s Alameda Books proportionality test . . . is not
binding Supreme Court precedent” with the bevy of other published Eleventh
Circuit opinions—both pre-and-post Flanigan’s II—that say the exact opposite.
See Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d 1164, 1176 (11th Cir. 2018)
(“There was no majority opinion in Alameda Books, but because Justice
Kennedy’s concurrence reached the judgment on the narrowest grounds, his
opinion represents the Supreme Court’s holding in that case.”) (quoting PeekA-Boo II, 630 F.3d at 1354 n.7); Daytona Grand, 490 F.3d 860, 875 n.20 (11th Cir.
2007) (“Because Justice Kennedy concurred in the judgment in Alameda Books
on the narrowest grounds, his opinion represents the Supreme Court’s holding
in that case.”). But the Flanigan’s II court distinguished those cases on the facts,
and the Court will not second guess its reasoning.
regulations. Chamblee is therefore entitled to summary judgment on Follies’s free
Follies’s Impairment of Contract Claims
Follies alleges Ordinance 752 and Ordinance 754 substantially impair the
agreement it executed with DeKalb County prior to the land annexation by
Chamblee. The Contract Clause of the U.S. Constitution provides that “[n]o State
shall . . . pass any . . . [l]aw impairing the [o]bligation of [c]ontracts.” U.S. Const.
Art. I, Sec. X. Although broad in language, it is “commonplace that the Contract
Clause does not operate to obliterate the police power of the States”; rather, it
“must be understood to impose some limits upon the power of a State to abridge
existing contractual relationships, even in the exercise of its otherwise legitimate
police power.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241–42 (1978)
(emphasis in original). Put another way, “[t]he Contract Clause protects
contracting parties’ reasonable contractual expectations against unreasonable
abrogation by the states.” S&M Brands, Inc. v. Georgia ex rel. Carr, 925 F.3d 1198,
1202–03 (11th Cir. 2019). As summarized by the Supreme Court:
The threshold issue is whether the state law has operated
as a substantial impairment of a contractual relationship.
In answering that question, the Court has considered the
extent to which the law undermines the contractual
bargain, interferes with a party’s reasonable
expectations, and prevents the party from safeguarding
or reinstating his rights. If such factors show a substantial
impairment, the inquiry turns to the means and ends of
the legislation. In particular, the Court has asked
whether the state law is drawn in an appropriate and
reasonable way to advance a significant and legitimate
Sveen v. Melin, 138 S. Ct. 1815, 1821–22 (2018). See also Gen. Motors Corp. v. Romein,
503 U.S. 181, 186 (1992) (“[W]hether the change in state law has operated as a
substantial impairment of a contractual relationship. . . . has three components:
whether there is a contractual relationship, whether a change in law impairs that
contractual relationship, and whether the impairment is substantial.”).
The Georgia Constitution similarly states that “[n]o . . . laws impairing the
obligation of contract . . . shall be passed.” Ga. Const. Art. I, Sec. 1, Par. X.
Practically speaking, both clauses operate in the same manner. All Star, Inc. v. Ga.
Atlanta Amusements, LLC, 332 Ga. App. 1, 8 (2015) (“[T]he contract clauses of both
the Georgia and the United States Constitutions forbid the legislature from
enacting any law impairing the obligation of contracts.”) (punctuation omitted).
To establish a violation, the complaining party must “show that a vested right is
at stake.” Polo Golf & Country Club Homeowners Ass’n, Inc. v. Cunard, 306 Ga. 788,
793 (2019). Georgia courts consider “whether a vested right exists and then
whether that vested right has been injuriously affected by the law in question.” Id.
Chamblee contends Follies’s claims fail because Follies cannot identify a
valid contract between the parties. The Court agrees. Follies points only to the
DeKalb Agreement. It granted Follies non-conforming status to operate in
derogation of DeKalb County’s laws for a period of fifteen years, effective January
1, 2007.30 In exchange, Follies agreed to pay DeKalb County an annual fee of:
(1) $100,000 for the first ten years and (2) $150,000 for the subsequent five years.31
By its own terms, the DeKalb Agreement was set to automatically terminate on
December 31, 2021.32 It also stated:
This agreement shall be binding upon DeKalb County,
its successors, transferees, [and] assigns for the terms
specified herein. This agreement shall be binding upon
any governmental body to which the County transfers
regulatory control over the matters herein, expressly
including any municipality which obtains jurisdiction by
incorporation or annexation.33
But Chamblee was not a party to the DeKalb Agreement. To the contrary,
Chamblee enacted a resolution expressly rejecting the position that incorporation
bound it to the terms of the DeKalb Agreement.34 Follies’s attempt to hold
ECF 39-3, at 5–6.
Id. at 10.
Id. at 6.
Id. at 6.
ECF 35-1, at 4.
Chamblee—an independent municipality—accountable for DeKalb County’s
promises is squarely foreclosed by Georgia law. O.C.G.A. § 36-30-3(a)
(“One council may not, by an ordinance, bind itself or its successors so as to
prevent free legislation in matters of municipal government.”). To be sure, the
Georgia Supreme Court—in a substantially similar action brought by another strip
club (the Pink Pony) against a newly-incorporated city in DeKalb County
(Brookhaven)—expressly found that the DeKalb Agreement “cannot be used to
bind the successively incorporated City of Brookhaven.” Trop, Inc. v. City of
Brookhaven, 296 Ga. 85, 88 (2014). See Oasis Goodtime Emporium I, 297 Ga. at 515 n.5
(discussing the same issue regarding Doraville, Georgia). This, according to the
Georgia Supreme Court, “undermine[d] Pink Pony’s erroneous arguments that it
had some vested right to continue operation as a nude dancing club that serves
alcohol.” Trop., 296 Ga. at 88.
The same holds true here. Follies cannot transmute the DeKalb Agreement
into a contractual promise with Chamblee to operate in derogation of Chamblee’s
laws. See DeKalb Cnty. v. Ga. Paperstock Co., 226 Ga. 369, 371–72 (1970) (holding
agreement between current county commissions and the defendant “would not be
binding on any subsequent board of county commissioners, and, therefore, would
not be enforceable beyond the year in which it was made without the continued
approval of such board of commissioners”).35 See also Brown v. City of E. Point, 246
Ga. 144, 145 (1980) (“Cases decided during the past decade indicate that a council
may bind itself although it may not bind its successors.”). Follies’s response is that
O.C.G.A. § 36-30-3(a), Trop, and Georgia Paperstock only address the validity of the
DeKalb County agreement under Georgia law and do not foreclose its
constitutional claim. But Follies’s argument misconstrues the foundation of its
cause of action. Without a valid contractual relationship with Chamblee, it has no
claim for the impairment of contract. Romein, 503 U.S. at 189 (holding the Contract
Clause applies to state actions which “impair the obligation of pre-existing
contracts”). As such, Chamblee is entitled to summary judgment on Follies’s
Contract Clause claims.
Follies’s First and Fourteenth Amendment Challenges to
Follies alleges Ordinance 754’s requirements for an establishment to qualify
as a restaurant permitted to obtain an alcohol license are unconstitutionally vague.
It is undisputed that, from 2014 through 2018, Chamblee continued to permit
Follies to operate and received certain payments in return. But it is likewise
uncontested that Chamblee directed that the payments cease in 2018 prior to
enactment of the at-issue ordinances. Follies does not advance a ratification
theory. Thus, the Court does not find these actions sufficient to constitute an
ongoing contract for purposes of the contract clauses.
A vague law may violate fundamental principles of due process. Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). A law is impermissibly vague if it: (1) “fails to
provide people of ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits” or (2) “authorizes or even encourages arbitrary and
discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
It is well established that “[t]he degree or vagueness that the Constitution
tolerates”—and accompanying level of judicial scrutiny—“depends in part on the
nature of the enactment.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455
U.S. 489, 498 (1982). When a regulation does not “threaten[ ] to inhibit the exercise
of constitutionally protected rights,” it is valid unless “the enactment is
impermissibly vague in all of its applications.” Id. at 498–99 (citations omitted).
See also Seventh St., LLC v. Baldwin Cnty. Plan. & Zoning Comm’n, 172 F. App’x 918,
922 (11th Cir. 2006). Further, an “economic regulation is subject to a less strict
vagueness test,” and the Supreme Court has “expressed greater tolerance of
enactments with civil rather than criminal penalties because the consequences of
imprecision are qualitatively less severe.” Hoffman Estates, 455 U.S. at 489–99.
Prior to 2018, Section 6-142(a) of Chamblee’s Alcohol Code contained
specific requirements for an establishment to qualify as a restaurant.36 Ordinance
754 amended that section to provide:
To be eligible for, and to operate under, a consumption
on the premises license as a restaurant, an establishment
Derive at least 50 percent of total revenue from the
sale of food prepared and consumed on the
premises and nonalcoholic beverages consumed
on the premises. For purposes of this subsection, if
an establishment requires customers to pay a
minimum charge to enter or remain on the
premises, the amount so charged shall not be
counted toward the 50 percent requirement.37
Section 6-142, as amended, is entitled to a high degree of judicial deference.
The ordinance: (1) is an economic regulation; (2) provides for civil, not criminal,
penalties; and (3) merely articulates content-neutral qualifications for an
establishment to qualify as a restaurant without infringing upon—or even relating
to—any constitutionally protected right. Follies does not challenge these facts.
Neither does Follies purport to show that § 6-142 is impermissibly vague in all of
ECF 41-8, at 22 § 6-142(a)(5).
ECF 39-2, at 16 § 6-142(a).
For the first time in its response in opposition to Chamblee’s motion for
summary judgment, Follies recharacterizes its cause of action as an “as applied”
challenge. Although not as robustly developed in the relevant case law, an “as
applied” challenge “addresses whether a statute is unconstitutional on the facts of
a particular case or to a particular party.” Harris v. Mexican Specialty Foods, Inc., 564
F.3d 1301, 1308 (11th Cir. 2009). Follies’s shift in strategy does not save its claim.
Irrespective of the label, the law is clear: “To find a civil statute void for vagueness,
the statute must be so vague and indefinite as really to be no rule or standard at
all.” Seniors C.L. Ass’n, Inc. v. Kemp, 965 F.2d 1030, 1036 (11th Cir. 1992) (quoting
Boutilier v. Immigr. & Naturalization Serv., 387 U.S. 118, 123 (1967)). See also Leib v.
Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1311 (11th Cir. 2009)
(“[T]he Constitution does not require precision; all that is required is that the
language conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding.”).
That is not the case here. Ordinance 754 unambiguously articulates what an
establishment must do to qualify as a restaurant. The requirement’s language is
sufficiently plain as to allow “persons of reasonable intelligence [to] derive a core
meaning” from it. Seniors C.L. Ass’n, 965 F.2d at 1036 (citing Cotton States Mut. Ins.
Co. v. Anderson, 749 F.2d 663, 669 n.9 (11th Cir. 1984)). That Follies disagrees with
the substance of this clear guideline—and would rather continue its prior practice
of offering only prepackaged food or a free buffet—does not render the code
unconstitutionally vague. Therefore, Chamblee is entitled to summary judgment
on Follies’s void-for-vagueness challenge.
Follies’s Equal Protection Claims
Follies alleges Chamblee violated its equal protection rights under the U.S.
Constitution—as well as the corresponding provisions of the Georgia
Constitution—through its adoption and enforcement of Ordinance 754.38
In relevant part, the Fourteenth Amendment provides that “[n]o State
shall . . . deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV. As a general principle, the “purpose of the equal
protection clause . . . is to secure every person within the state’s jurisdiction
against intentional and arbitrary discrimination, whether occasioned by express
The federal and state claims are governed by the same standards. See Williams
v. Fulton Cnty. Sch. Dist., 181 F. Supp. 3d 1089, 1136 (N.D. Ga. 2016) (“The Equal
Protection Clause of the Georgia Constitution is coterminous with that of the
federal constitution, and so the same analysis applies to Plaintiffs’ state and
federal equal protection claims.”); Pitts v. Georgia, 293 Ga. 511, 515–16 (2013)
(“[T]he protection provided in the Equal Protection Clause of the Federal
Constitution is coextensive with that provided in the Georgia Constitution.”).
terms of a statute or by its improper execution through duly constituted agents.”
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Follies Presents No Evidence that Chamblee Adopted
Ordinance 754 Based on a Discriminatory Intent or Purpose.
Follies alleges Chamblee’s policymakers “harbor[ed] an invidious
discriminatory purpose” based on the “racial and ethnic composition” of Follies’s
clientele, which constituted a “substantial motivating factor” for adopting the
restaurant qualification requirements found in § 6-142(a)(5) of Ordinance 754.
“[P]roof of racially discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause.” City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,
538 U.S. 188, 194 (2003) (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 264 (1977)). A law that is facially neutral “violates the Equal
Protection Clause if adopted with the intent to discriminate against a racial
group.” Johnson v. Governor of Fla., 405 F.3d 1214, 1222 (11th Cir. 2005) (citing
Washington v. Davis, 426 U.S. 229, 239 (1976)). Such a facially neutral regulation is
unconstitutional only if:
(1) discrimination was a substantial or motivating factor
in the government’s enactment of the law, and (2) the
government cannot rebut that claim by showing that the
provision would have been enacted in the absence of any
racially discriminatory motive.
Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1044–45 (11th Cir. 2008)
(citing Johnson, 405 F.3d at 239) (punctuation omitted).
The Eleventh Circuit has provided clear guidance for the Court to follow at
Determining whether invidious discriminatory purpose
was a motivating factor in adopting a statute or
ordinance demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available. The impact of the official action—that is,
whether it bears more heavily on one race than another—
may provide an important starting point. However,
unless there is a clear pattern that the action is impacting
one race more than another, impact alone is not
determinative, and courts must look to other evidence
such as the historical background behind the state’s
action and the specific sequence of events in the state’s
Young, 529 F.3d at 1045 (citing Arlington Heights, 429 U.S. at 266).
Follies has not met its burden here. At the outset, Follies is not a minorityowned business.39 It has also presented no evidence demonstrating the race of its
clientele. More problematic, it offers no evidence that discrimination played any
role in the enactment of Ordinance 754. That ordinance is facially neutral.
The challenged portion simply establishes baseline requirements for an
Both of Follies’s co-owners are Caucasian [ECF 109 (Shine Dep. Tr. 11:23 12:4)].
establishment to qualify as a restaurant. In fact, a substantially similar requirement
pre-dated the passage of Ordinance 754.40 The primary difference between the
original and amended versions is that Ordinance 754 only permits an
establishment to count “the sale of food prepared and consumed on the premises”
towards the 50 percent threshold.41
This new requirement prevents Follies from engaging in its prior practice of
pairing a package of crackers—or other prepackaged food—with an alcoholic
drink under one single transaction as to increase its food sales numbers and satisfy
the 50-percent requirement. Without regard to the legitimacy of this practice, there
is no evidence Chamblee acted with a discriminatory motive in adding this extra
requirement. Even assuming, arguendo, that Ordinance 754 has adversely
impacted Follies’s chosen strategy to obtain an alcohol license, that alone is not
enough to prevail. See E & T Realty v. Strickland, 830 F.2d 1107, 1114 (11th Cir. 1987)
ECF 41-8, at 22 § 6-142(a)(5).
ECF 39-2, at 16 § 6-142(a)(5). Follies also challenges Ordinance 754’s
prohibition on establishments counting a “cover charge” for patrons to enter
the premises towards the 50 percent total revenue threshold. But the prior
version of this ordinance also contained such a limitation: “[I]f a restaurant
makes a minimum charge or cover charge, the amount so charged shall not be
counted in computing total sales and shall not be counted as a food or beverage
sale.” [ECF 41-8, at 22 § 6-142(a)(5)]. This undercuts any assertion that the
“cover charge” provision of Ordinance 754 was enacted with a discriminatory
(“Discriminatory purpose implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker selected a particular
course of action at least in part because of its adverse effects upon an identifiable
group.”) (punctuation omitted). Chamblee is thus entitled to summary judgment
on this aspect of Follies’s equal protection claim.
Follies Fails on Its Selective Enforcement Claim.
Follies alleges Chamblee has also selectively enforced the restaurant
qualification requirements of Ordinance 754. “It is well settled that unequal
application of a facially neutral statute may violate the Equal Protection Clause.”
Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996) (collecting cases).
See also E & T Realty, 830 F.2d at 1113 (“Unequal administration of facially neutral
legislation can result from either misapplication (i.e., departure from or distortion
of the law) or selective enforcement (i.e., correct enforcement in only a fraction of
cases).”). To succeed on such a claim, the plaintiff must show that: “(1) the plaintiff
was treated differently than similarly situated persons; and (2) the defendant
unequally applied the facially neutral statute for the purpose of discriminating
against the plaintiff.” Strickland, 74 F.3d at 264 (citing E & T Realty, 830 F.2d at
Despite significant briefing, Follies does not clearly articulate whether its
selective enforcement claim is premised on alleged racial discrimination or a
“class-of-one” theory.42 But the distinction is irrelevant here; both tests require the
Campbell, 434 F.3d at 1313. See also Young, 529 F.3d at 1045 (11th Cir. 2008)
(“[T]he same strict similarly situated standard applies whether an equal protection
claim is brought under a class of one theory or a traditional theory of unlawful
discrimination.” (quoting Griffin Indus. v. Irvin, 496 F.3d 1189, 1204–05 (11th Cir.
2007)). To satisfy this burden, “the comparators must be prima facie identical in all
relevant respects.” Grider v. City of Auburn, 618 F.3d 1240, 1264 (11th Cir. 2010)
(punctuation omitted). See also E & T Realty, 830 F.2d at 1109 (“Different treatment
of dissimilarly situated persons does not violate the equal protection clause.”).
Selective enforcement claims are not “limited to individuals discriminated
against based on their membership in a vulnerable class,” as government
entities are required “to treat similarly situated people alike.” Campbell v.
Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006). In these so called “class-ofone” cases, the plaintiff must establish that it “has been intentionally treated
differently from others similarly situated and that there is no rational basis for
the difference in treatment.” Vill. of Willowbrook, 528 U.S. at 564 (collecting
The tests diverge at the second step: i.e., whether strict or rational basis scrutiny
is applied. See Young, 529 F.3d at 1046 n.8. Because Follies has not met its
burden at step one, the Court need not reach step two.
Since March 2019, Chamblee has denied Follies’s applications for an alcohol
license.44 One of Chamblee’s proffered reasons for doing so is that Follies does not
satisfy the 50 percent food sales threshold to qualify as a restaurant eligible to sell
and serve alcohol.45 However, Chamblee granted an alcohol license to AMF
Bowling Center, Inc. (hereafter, Bowlmor) for 2018, even though the face of
Bowlmor’s application demonstrated that it too failed to satisfy the 50 percent
threshold.46 It is further undisputed that Chamblee renewed Bowlmor’s alcohol
license for 2019 despite its application again being facially deficient.47 In December
2019, Chamblee informed Bowlmor that its 2020 application would be denied.48
After a series of communications between Bowlmor and Chamblee’s legal counsel:
(1) Bowlmor requested an appeal and hearing on the denial of its alcohol license,
which permitted it to continue selling and serving alcohol; (2) the hearing was
continued several times; and (3) Chamblee ultimately amended the Alcohol Code
ECF 12-1, ¶ 77.
Id. ¶ 78.
Id. ¶ 84. Follies presents evidence that Bowlmor’s total sales of food and nonalcoholic beverages for 2018 only constituted 46 percent of its total revenue
[id. ¶¶ 82–84].
Id. ¶¶ 86–91.
Id. ¶ 93.
to create a specific carve out for a bowling alley to obtain an alcohol license.49
Follies alleges Chamblee did not offer it these courtesies or opportunities, which
demonstrates the city’s selective enforcement of Ordinance 754.
Follies’s claim, however, fails at the first step. A showing of a similarly
situated comparator “require[s] some specificity.” Campbell, 434 F.3d at 1314.
Although Follies points to evidence that Chamblee treated Bowlmor differently,
Follies makes no effort to establish that it and Bowlmor are “prima facie identical
in all relevant respects.” Grider, 618 F.3d at 1264. And the Court finds that they are
not. Most obviously, Follies is a strip club that offers live nude dancing. Bowlmor
is a bowling alley. Follies is categorically prohibited from applying for or obtaining
an alcohol license in its capacity as a strip club. This independent restriction is not
applicable to Bowlmor. Further, Follies purports to distribute food to its patrons
through its practice of pairing crackers or other pre-packaged food with an
alcoholic beverage or a free buffet. There is no indication Bowlmor engages in
similar activities. At bottom, Follies has failed to put forth evidence showing it and
Bowlmor are similarly situated in any respect other than their desire to sell alcohol
to customers. Chamblee is entitled to summary judgment.
Id. ¶¶ 94–108.
On February 12, 2020, Chamblee filed its Answer to Follies’s Second
Amended Complaint and asserted two counterclaims seeking injunctive relief.50
In counterclaim Count I, Chamblee seeks to enjoin Follies from violating its
Alcohol Code by selling alcohol without a license. Similarly, counterclaim Count II
requests that the Court stop Follies from violating the Adult Code by continuing
to offer fully nude dancing. Neither party has moved for summary judgment on
Although not expressly invoked by the parties, the Court finds that the
exercise of subject matter jurisdiction over Chamblee’s state law counterclaims
would be inappropriate.51 When a district court has original jurisdiction over an
action, it also has “supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution.”
The Court possesses the authority to raise the issue of its jurisdiction sua sponte.
See Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (“Federal courts are
obligated to inquire into subject-matter jurisdiction sua sponte whenever it may
be lacking.”). See also Ameritox, Ltd. v. Millennium Lab’ys, Inc., 803 F.3d 518, 537
(11th Cir. 2015) (“[O]nce a district court possesses discretion to dismiss the
supplemental claims, it must be continuously mindful regarding whether or
not the factors favor dismissal.”).
28 U.S.C. § 1367(a). See also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725,
(1966) (holding claims must be so related as to “derive from a common nucleus of
operative fact[s]”). But supplemental jurisdiction is a matter ultimately concerning
the Court’s discretion, not a litigant’s right. L.A. Draper & Son v. Wheelabrator-Frye,
Inc., 735 F.2d 414, 427 (11th Cir. 1984). For example, a district court “may decline
to exercise supplemental jurisdiction over a claim” if it “has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). See also Gibbs, 383
U.S. at 726 (“Certainly, if the federal claims are dismissed before trial . . . the state
claims should be dismissed as well.”); L.A. Draper, 735 F.2d at 428 (“[I]f the federal
claims are dismissed prior to trial, Gibbs strongly encourages or even requires
dismissal of the state claims.”). Factors such as “judicial economy, convenience,
fairness to the parties, and whether all the claims would be expected to be tried
together” remain relevant to the inquiry. Palmer v. Hosp. Auth. of Randolph Cnty.,
22 F.3d 1559, 1569 (11th Cir. 1994) (citing Gibbs, 383 U.S. at 725–26).
The Court possessed original jurisdiction over Follies’s constitutional claims
under 28 U.S.C. § 1331. As stated above, Chamblee is entitled to summary
judgment on those claims. That leaves only Chamblee’s counterclaims, which seek
injunctive relief premised solely on state law. These circumstances strongly favor
the Court to exercise its discretion and not adjudicate the counterclaims. See Raney
v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004) (“We have encouraged
district courts to dismiss any remaining state claims when, as here, the federal
claims have been dismissed prior to trial.”). It is true that this action has been
pending for the better part of three years.52 But as noted by the Eleventh Circuit,
the Court’s inquiry “is not just a matter of toting up months or motions or the page
counts of judicial orders.” Ameritox, 803 F.3d at 539. Put another way, time alone
does not negate 28 U.S.C. § 1367(c)(3)’s directive or the well-established law of this
Circuit. See id. (“[E]very litigant who brings supplemental claims in court
knowingly risks the dismissal of those claims.”). What is more, the parties are
litigating substantially similar issues in a parallel state court action.53 This, too,
militates in favor of the Court declining to exercise discretion. See Ameritox, 803
F.3d at 540 (“State courts, not federal courts, should be the final arbiters of state
law in our federalist system.”). Therefore, the Court finds that Chamblee’s
counterclaims should be dismissed without prejudice.
Because Chamblee asserted the counterclaims in its Answer to Follies’s Second
Amended Complaint, they have only been pending for approximately 18
See City of Chamblee v. WBY, Inc. d/b/a Follies, Case No. 19CV10326 (DeKalb
Cnty. Ga. Sup. Ct.).
Follies’s motion for partial summary judgment [ECF 118] is DENIED;
Chamblee’s motion for summary judgment [ECF 120] is GRANTED; and Follies’s
motion to strike [ECF 136] is DENIED. The Clerk is DIRECTED to enter judgment
in favor of Chamblee on all of Follies’s claims. Further, Chamblee’s counterclaims
are DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to close this
SO ORDERED this the 15th day of July 2021.
Steven D. Grimberg
United States District Court Judge
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