Businesses challenge law against sipping where there’s stripping

Friday, January 7, 2000

A federal judge refused to grant a temporary restraining order on Jan. 5 against a Columbus, Ga., ordinance that forbids nude dancing at businesses selling alcohol.

Twelve business owners sued the city in federal court on Dec. 27, contending that the ordinance infringes on their free-expression rights under the U.S. and Georgia constitutions.

For many years, adult entertainment establishments in Columbus could sell alcohol as well as offer exotic dancing. In December, however, the city passed the ordinance prohibiting businesses from mixing alcohol and nudity.

“The actions of Defendant have been a thinly disguised and deliberate attempt to eliminate nude dancing from the City of Columbus,” the 12 clubs allege in their lawsuit, Hamilton v. City of Columbus.

The plaintiffs further argue that the ordinance is “content-based and constitutes a prior restraint on protected activity” contrary to the First Amendment and the free-speech provision of the Georgia Constitution.

The business owners also argue that the city has “conditioned a constitutional right (protected expression) upon the absolute surrender of a liberty and property interest (alcoholic beverage license), which, in its application, will destroy the nature of Plaintiffs' businesses.”

In its 1973 decision in California v. LaRue, the U.S. Supreme Court held that the 21st Amendment, which repealed prohibition and gave states power to regulate alcoholic beverages, supported the right of the state of California to prohibit the sale of alcohol at a nude-dancing establishment.

However, in 1996 the Supreme Court ruled in 44 Liquormart v. Rhode Island that the 21st Amendment “does not license the States to ignore their obligations under other provisions of the Constitution.”

The high court said that Rhode Island's categorical ban on the advertising of liquor prices violated the First Amendment and that the 21st Amendment would not save the law.

However, in another portion of the 44 Liquormart ruling, the high court wrote that “entirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations.”

E.H. Polleys Jr., Columbus' city attorney, says the city is not trying to ban nude dancing. “The only thing the ordinance does is to eliminate the combination of alcohol and nudity,” he said. “We will file an answer to the lawsuit sometime in the middle of the month and then will follow up with a motion to dismiss.”

Cary Wiggins, an attorney for the club owners, says the ordinance impermissibly discriminates on the basis of content. “In Columbus, the ordinance specifically and only bans 'nude dancing' and 'nude modeling' in alcohol-licensed establishments,” he said. “One could presumably engage in other conduct involving nudity in those establishments.”