§ 26-21. Findings.  


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  • The council of the city is deeply and profoundly concerned about the many types of criminal activities frequently engendered by adult establishments.

    (1)

    The city is becoming an increasingly attractive place for the location of commercial enterprises and of residences for families, and the council is committed to adopting ordinances designed to protect the quality of life for its constituents.

    (2)

    The council desires to establish policies that provide the maximum protection of the general welfare, health, morals, and safety of the residents of the city.

    (3)

    The governing authority of each municipal corporation is authorized to enact ordinances which have the effect of restricting the operation of adult bookstores and video stores to areas zoned for commercial or industrial purposes, provided in O.C.G.A. § 36-60-3.

    (4)

    The state supreme court, in Chambers d/b/a Neon Cowboy v. Peach County, Georgia, 266 Ga. 318 (1996), held that local governments may adopt ordinances designed to combat the undesirable secondary effects of sexually explicit businesses, and further held that a governing authority seeking to regulate adult establishments must have evidence of a relationship between the proposed regulation and the undesirable secondary effects it seeks to control.

    (5)

    The state supreme court further held in the same opinion that in passing its regulation, a local government may rely on the experience of other counties and municipalities to demonstrate such a relationship.

    (6)

    The United States Supreme Court, in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), held that a local government may rely on the experience of other cities in enacting legislation to regulate adult entertainment business.

    (7)

    The city council has received extensive evidence of secondary effects that are currently occurring within the city at adult establishments. Such evidence consisting of direct testimony of undercover agents and citizens that detailed in explicit terms that violations of law are occurring within the existing adult establishments located within the city. Further, that at least one uniformed county police officer was observing these violations and failed to act on such blatant violations. The city council has considered the affidavit and guilty plea involving former Fulton County Police Department Captain Mark Lance wherein he pled guilty to extorting protection money from an adult establishment located within the city. The city council has considered the testimony in contrast with studies and precedents offered by the adult entertainment business.

    a.

    The city council has considered live testimony from Dr. Bill Holland, former Deputy Director for the Georgia Bureau of Investigation, over the Georgia Crime Information Center ("GCIC") and Dr. Richard Clarke, Director of Planning for the City of Atlanta Police Department, and from Dillon Fries, certified real estate appraiser, former member of the Appraisal Foundation Advisory Council and the Metro Atlanta Relocation Council, and has testified in state and federal courts across the country. The testimony of such witnesses in the weighed opinion of the city council is that the studies proffered by the adult entertainment industry are not credible on balance given the presence of the undesirable effects which are currently existing including alcohol abuse, fights, sex for hire, prostitution, diminished property values and deterioration of neighborhoods. Moreover, based on the evidence presented on balance, it appears that the lack of police reports at adult establishments are a result of the county's failure to enforce such laws. Moreover, the city council notes the study prepared by the county in the early 1990s coincided with the time period Captain Lance was providing police protection for an adult establishment, therefore, condemning the validity of such studies.

    b.

    The city council has further received direct testimony involving adult bookstores, explicit media outlets, and adult novelty stores wherein one such establishment used glory holes and booths and considered direct testimony from an undercover former law enforcement officer that illegal activities occurred at one of the adult establishments.

    (8)

    Based on the experiences of other municipalities and counties including, but not limited to, Tucson, Arizona; Garden Grove, California; Ellicottville, New York; New York, New York; Oklahoma City, Oklahoma; Dallas, Texas; Houston, Texas; St. Croix County, Wisconsin; and Gwinnett County, Georgia, which are found to be relevant to the problems faced by the city, the city council notes the documented negative economic, physical, and social impact adult entertainment businesses have on the community.

    (9)

    Among the undesirable community conditions identified with live nude entertainment at which alcohol is served or consumed are depression of property values in the surrounding neighborhood, increased expenditure for the allocation of law enforcement personnel to preserve law and order, increased burden on the judicial system as a consequence of the criminal behavior, and acceleration of community blight.

    (10)

    The council further finds it has an important governmental interest in reducing crime and protecting surrounding properties from adverse impacts, which interest is unrelated to the suppression of speech.

    (11)

    It is the intent of the city council to enact an ordinance, narrowly tailored, sufficient to combat the undesirable secondary effects of adult entertainment businesses, including the serving and consumption of alcoholic beverages at adult entertainment facilities.

    (12)

    The city council desires to regulate the adult entertainment businesses within the city limits. Notwithstanding, this article is not to be construed as an endorsement from the city of these establishments. The city council understands that adult entertainment businesses are actually protected under the free speech clause of the First Amendment of the Constitution of the United States for their role in communicating "erotic speech." The courts allow communities to regulate speech, not based on the content of the speech, but in time, place, and manner in which it is presented.

    (13)

    It is the intent of this article to regulate the time, place, and manner of the operation of businesses or facilities that offer adult entertainment as defined in section 26-22. It is well established and has been the experience of other communities in the state and throughout the United States that adult entertainment, which includes public nudity, has been associated with and may encourage disorderly conduct, prostitution and sexual assault. This section advances the substantial government interest in promoting and protecting public health, safety, and general welfare, maintaining law and order and prohibiting public nudity. The section is narrowly constructed to protect the First Amendment rights of citizens of the city while furthering the substantial governmental interest of combating the secondary effects of public nudity and adult entertainment from areas and uses of the community that are incompatible. Areas and uses that are to be protected from adult entertainment include, but are not limited to, residential, churches, day care centers, libraries, recreational facilities, and schools.

    (14)

    Based on the experiences of other counties and municipalities, the city council takes note of the patent conditions and secondary effects attendant to the commercial exploitation of human sexuality, which do not vary greatly among the similar communities within our country.

    (15)

    The city council further finds that public nudity (either partial or total) under certain circumstances, particularly circumstances related to the sale and consumption of alcoholic beverages in establishments offering live nude entertainment or "adult entertainment," whether such alcoholic beverages are sold on the premises or not, begets criminal behavior and tends to create undesirable community conditions. In the same manner, establishments offering cinematographic or videographic adult entertainment have the same deleterious effects on the community. Among the acts of criminal behavior found to be associated with the commercial combination of live nudity and alcohol consumption or sale, live commercial nudity in general, and cinematographic or videographic adult entertainment are disorderly conduct, prostitution, public solicitation, public indecency, fighting, battery, assaults, drug use and drug trafficking. Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); 5634 East Hillsborough Ave., Inc. v. Hillsborough County, 2007 WL 2936211 (M.D. Fla. Oct. 4, 2007), aff'd, 2008 WL 4276370 (11th Cir. Sept. 18, 2008) (per curiam). See also California v. LaRue, 409 U.S. 109 (1972); N.Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981).

    (16)

    Among the undesirable community conditions identified in other communities with the commercial combination of live nudity and alcohol consumption or sale, commercial nudity in general, and cinematographic or videographic adult entertainment are depression of property values and acceleration of community blight in the surrounding neighborhood, increased allocation of and expenditure for law enforcement personnel to preserve law and order, and increased burden on the judicial system as a consequence of the criminal behavior described in this article. The city council finds it is reasonable to believe that some or all of these undesirable community conditions are occurring, and will continue to occur in the city.

    (17)

    The city council further finds that other forms of adult entertainment including, but not limited to, adult bookstores, adult novelty shops, adult video stores, peep shows, and adult theaters have an adverse effect upon the quality of life in surrounding communities.

    (18)

    The city council further finds that the negative secondary effects of adult establishments upon the city are similar whether the adult establishment features live nude dancing or sells books/videotapes depicting sexual activities. H & A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); High Five Investments, LLC v. Floyd County, No. 4:06-CV-0190-HLM (N.D. Ga. Mar. 14, 2008).

    (19)

    Therefore, the city council finds that it is in the best interests of the health, welfare, safety and morals of the community and the preservation of its businesses, neighborhoods, and of churches, schools, residential areas, public parks and children's day care facilities to prevent or reduce the adverse impacts of adult establishments by restricting hours of operation, prohibiting alcohol sale or consumption, and restricting the distance from other adult establishments and restricting the distance from residential areas, schools, public parks, churches, and children's day care facilities.

    (20)

    The city council finds that licensing and regulations are necessary for any adult establishment.

    (21)

    The city council finds that these regulations promote the public welfare by furthering legitimate public and governmental interests including, but not limited to, reducing criminal activity and protecting against or eliminating undesirable activities impacting adversely the community conditions and further finds that such will not infringe upon the protected Constitutional rights of freedom of speech or expression. To that end, the city council directed the city attorney to prepare this article.

    (22)

    The city council hereby re-adopts and incorporates these pre-enactment findings and evidence into the adoption of the following code amendments.

(Ord. No. 2008-08-41, 8-19-2008; Ord. No. 2009-04-25, § 1, 4-21-2009)