### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 28, 2003 THOMAS K. KAHN CLERK

* Honorable Edwi n L. Nelson, United States District Judge for the Northern District of Alabama, sitting by

designation. Thi

s case is being decided by a quorum due to the death of Ju dge Nelson on 17 May 2003. See 28 U.S.C. § 46(d). [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_____________________________

No. 02-10216

_____________________________ D. C. Docket N

o. 97-00195 CV-4-H

L-5 ARTISTIC ENTERTAINMENT, INC., a Georgia Corporation d.b.a Teasers, STEPHEN R. DEWBERRY, Plaintiffs-Appe llants, versus CITY OF WARNER ROBIN S, DONALD W

ALKER, Indiv

idually and in his capacity

as Mayor of the City of Warner Robins, et al., Defendants-Appe llees.

__________________________________ _______ Appeal from the United States District Court for the Middle District of Georgia

__________________________________ _______ (May 28, 2003) Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and NELSON * , District Judge.1 The Adult Ordinance also specified that adult businesses (1) could not be located within

1,000 ft. of a school, church, licensed child care cent

er, public park, or property zoned or used for residential purposes; (2) could not be within 1, 000 ft. of an other location lic ensed as an Adult Business or an A lcohol Merch ant; and (3) could not be located on less than one acre of land containing less than 100 ft. of road frontage. (1 R. at Tab 10, Ex. B.)

2 1 R. at Tab 10, Ex. C. 2 PER CURIAM: In 1997 the City of Warner Robins, Georgia, adopted two ordinances aimed at prohibiting the consu

mption of alcohol

ic beverages at ad

ult entertainm

ent facilities. The

first ordinance,

Ordinance 18-97,

titled “An Or

dinance Regulating Adult Businesses” (

the “Adult Or

dinance”), am

ong other things, esta

blished a licensing schem

e for operation of a

n “adult business”

within city lim

its and prohibited the sale and consumption of alcoholic beverages on the premises of an adult business. 1 The second ordinance, Ordinance 19- 97, titled “An Ordinance to Amend the W

arner Robins Alcoh

olic Beverage Or

dinance” (“A

lcohol Ordinance”), a

mended the City ’s alcohol licensi ng laws to prohibit the

selling, serving, or dispen sation of alcohol ic beverages by any “adult busin ess.” 2 The City Council approved the o

rdinances after a

n evidentiary he

aring in which counc

il members h

ad an opportunity t

o review studies and

testimony of

state officials regarding the com

bined effects of a

lcohol and adult enter

tainment. The plaintiffs/app ellants, who own a nd operate an adult e

ntertainment3

establishment th

at sells alcohol and of

fers nude dancing in t

he City, brought

this action to challenge both ordinances on const itutional grounds.

I. PROCEDURAL HISTORY
This is the third appe

al in this litigation. Initially, thi s court vacated the district court’s order enjoining the implement

ation of the ordinanc es, finding that it had not accorded suff

icient weight to the

evidentiary ba

sis that supported adopt

ion of the ordinances. In the second appeal , we concluded the Adult Ordinance a

nd the Alcohol Ordinance

were content-ne

utral and subject t

o the intermedi

ate level of scruti ny estab lished by United States v. O’Brien , 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968 ), and that the W arner Robins City

Council had an adequa

te basis for concluding that a proscription on the sale and consumption of alcohol at adult businesses would

reduce the crim

e and other social costs associated with those businesses. Artistic Entm ’t, Inc. v. C ity of Warne

r Robins , 223 F.3d 1306, 1308- 10 (11th Cir. 2000). We also concluded that the Adult Ordi

nance was not unconstitutionally

vague, but that it did operate as an unconst itutional prior rest

raint on expression because

it did not provide for a

n applicant’s righ

t to begin operating his business within a reasonable time if the City failed to act on his application as3 2 R. at Tab 72, Ex. B.
4 The City initially agreed

that neither ordinance would be enforced while the case was being litigated. However, on Decembe r 16, 1999, after the district court granted the City summary judgment ona ll counts, the City began enforcing the ordinances ag ainst Artistic until August 24, 2000, the day after we

held that the Adult Ordinance operated as an unconstitutional prior restraint on expression. Since then Artistic has offered both alcoholic beverages and nude dancing. 4 requir ed by Redner v. Dean , 29 F.3d 1495 (11th Cir. 1994). Artistic Entm ’t, 223 F.3d at 1310-11. After rema

nd, the City ena

cted Ordinance 57- 00, entitled “A n Ordinance to Amend the Ordinance Regulating Adult Businesses” (“Amending Ordinance”). 3 The Amending O

rdinance re-adopt

ed the Adult Ordina

nce in all respects , but additionally provi

des in pertinent part : If the City Coun

cil has not approved or

disapproved an application for a license within forty-five (45) days from the date such application was received by the

City Clerk, t

hen on the expiration of

the forty-fif

th (45th) day: (1) the application shall be approved and the City Clerk shall immediately issue the license for which application was m ade, and (2) the applican

t shall have the right

to begin operating in th

e manner allowed by the license for which application was made. In subsequent procee

dings, the district court found Artistic was not entitled to damages for th

e period during whic

h the City requir

ed it to refrain fr

om offering alcoholic beverage s in conjunction with nude dancing. 4 Agreeing with Artistic that the entire Adult O

rdinance was unenf

orceable, but conc

luding the Alcohol Ordinance was le

gitimately

enforced, the dis

trict court then invi

ted the parties to fi

le5 2 R. at Tabs 65-68.
6 R2 R. at Tab 72.
7 2 R. at Tab 74.
8 2 R. at Tab 78, p. 1. 5 motions “re

lated to the issue of w

hether the prior re straint problem s with the Adult Ordinance have been cured” by the adoption of the Amending Ordinance. 5 The City file

d a motion for sum

mary jud gment arguing tha

t the Amending Ordinance had cured the prior restraint problem. Artistic filed a motion to reopen discovery and a m

otion to amend its complaint, con tending: the Ame

nding Ordinance did not cu

re the prior restr

aint problem; ne

w evidence would sh

ow the Amending Ordinance lacked any evidentiary basis as required by the United States and Georgia constit

utions; and, the Am

ending Ordinance w

as not enacted in accordance with t

he notice and hearin

g procedures requir

ed by Georgia z

oning laws. 6 In its response to the City’s motion for summa ry judgment, Artistic reiterated its arguments that the Amending Ordinance failed to cure the prior restraint problem and violated the Geo

rgia zoning laws. 7 Artistic invited the district court to consider the summar

y judgment

facts and legal ar

gument in conjun

ction with its mo

tion to supplement, noti

ng “the issues ra

ised and argued in the

motions overlap t

o a large degree.” 89 Artistic had argued that thevalidity of th e Amending Ordi

nance was not pro

perly before the court without anamendment to the pl eadings. The City

acquiesced to

the amendment, but contended it was, ne ver theless, entitled to summary judgment regarding the validity of the Amending Ordinance. 6 In the context of thes e pending motions, and after accept

ing evidence in support of Artistic’s motion, the district court granted Artistic’s motion to file an amended com

plaint 9 but, finding the Amending Ordinance was valid, also granted the City’s motion for summ ary judgment on all claims. Finding that additional discovery would not be helpful, the district court denied Artistic’s request to reopen discovery. T

his appeal followed
.

II. ISSUES
Artistic argues th

e district court gra

nted summar

y judgment sua sponte

on the supplemented cl

aims, without

providing notice or an opportunity for A rtistic to come forwar

d with evidence to sho

w that the supplem

ented claims c

reated a genuine issue of m

aterial fact. A

rtistic also argues

the district court im

properly denied its request to r

eopen discovery.

Artistic further

argues the Am

ending Ordinance is invali

d because: (1) the un

constitutional portions

of the Adult Ordinance were

not severable, so t

hat the entire Adul

t Ordinance was v

oid, and7

could not be adopted by

reference in the

Amending Ordi

nance; (2) the adopt

ion of the Amending O

rdinance violated G

eorgia’s Zoning P

rocedures Law;

and (3) adoption of the Am

ending Ordinance violated the First Am endment becaus e the City lacked a pr

oper evidentiary

basis to support its pass age. Finally, Artistic argues the district court erred in holding the Alcohol Ordinance enforceable even though portions of it adopt by reference

definitions containe

d in the void Adult Ordinance.

III. DISCUSSION

A. The Grant of Sum

mary Judgm

ent
We have previously emphasized that Rule 56's notice provision “is not an unimportant technicality, but a vital procedural safeguard . . . . [T] he notice provision ensures that

litigants will have a

t least ten days in which to form ulate and prepare their bes

t opposition to an im

pending assault upon the continued viability of their claim or defense.” Massey v. Congr ess Life Ins. Co. , 116 F.3d 1414, 1417 (11th Cir. 1997) (c

itations omitted) . We have, how ever, distinguished b etween sua sponte grants of summary judgm ent in cases involving purely legal questions based10 Other circuits re viewing sua sponte grants of summary judgment have been sim ilarly concerned

with the comple

teness of t he evidentiary record before the trial court. I n Ramsey v. Coughlin , 94 F.3d 71 (2nd Cir. 1996) , the court reversed a district court’s grant of summary judgment sua

spontein favor of the defendant because “an orderly and re viewable record” did not exist. Id . at 74. However, the court made it c

lear that: Where it appears clearly upon the record that all of the evident

iary mater

ials that a party might submit in response to a motion for summary judgmen t are befo re the court, a sua sponte

grant of summar

y judgment a

gainst that part

y may be appropriate if those materials show no material dispute of fact exists and that the other party is entitled to judgment as a matter of law. Id
. 8 on complete evid

entiary recor

ds, and cases involvin

g factual disputes w

here the non-moving party

has not been afforde

d an adequate opportuni

ty to develop the record. 10 For instance, in Massey , in reversing the d istrict court’s sua spontegrant of summar

y judgment

, we distinguished Black Warrior Electric Mem

bership Corp. v. Mississippi Powe

r Co. , 413 F.2d 1221 (5th Ci r. 1969), em

phasizing that Black Warrior involved a sua spontegrant of summary judgm ent on a purely legal issue, while the issue upon w

hich the district cour

t granted summ

ary judgm

ent in Massey involved a question of fact which the non-moving party had not been afforded an adequate opportu nity to develop. Massey , 116 F.3d at 1418; Black Warrior Electric , 413 F.2d at 1226. L ikewise, in Burton v. City o f Belle Glade , 178 F.3d 1175 (11th Cir. 1999),

we made it cl

ear that where a

legal issue has been fully developed, and the e

videntiary record is complete , summar y judgment

is entirely11 Other circuits have similarly held that formal notice is n ot a lwa ys required. E.g
. Bridgeway Corp. v. Citibank , 201 F.3d 134, 140 (2nd Cir. 2000) (holding that the district court properly granted a defendant summar

y judgment sua sponte

even though the plaintiff

had not been given any notice because “nothing in the record [indicated] that Bridgeway was proc edurally prejudiced by the d istrict court’s failure to give notice that it was considering a sua sponte grant of summary judgment in favor of Citib ank” on a legal issue) ; Bramble v. Am. Postal Workers Union , 135 F.3d 21, 27 (1st Cir. 1998) (holding that lack of notice prior to a grant

of summary ju

dgment sua sponte

does not warrant reversal where nonmovant’s brief showed that he did have adequate notice of the legal theory used by the court to

grant summary

judgment); see also Ross v. Uni v. of Tex. , 139 F.3d 521, 527 ( 5th Cir. 1998) (holding that lack of notice before granting summary judgment sua sponte

does not warrant reversal where it

was clear that nonmovant’s claim had no basis); English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993) (noting that notice would not be required prior to granting summary judgment sua sponte where the nonmovant’s claim is frivolous). But see Lopez-Carrasquillo v. Rubianes , 230 F.3d 409, 411-12 (1st Cir. 2000) (holding that it was error for a district cou rt to simultaneously permit the plaintiff to amend a complaint to reinstate previously dismissed defendants and grant those reinstated

defendants summa

ry judgmen

t sua sponte

on the added claims). 9 appropriate even if

no formal notic e has been provided. 11 Id . at 1204. In the instant case, we conclude that the district court’s grant of summary judgment was

proper. In doing so,

we do not retreat from our previ ous admonition that summa

ry judgme

nt should be granted sua sponte only in those circ umstances in which the dismis sed claims have been fully deve

loped in the evidentiar

y record and the non-moving par

ty has receive

d adequate notice. Here, the distr ict court’s Apr

il 16, 2001, order m

ade it clear that b oth parties were e xpected to come

forward with motions “re

lated to” the constitu

tionality of the A

dult Ordinance foll

owing the adoption of the Amending Ordinance. Furthermore, although the district court had no formal m

otion for summ

ary judgm

ent on the new claim

s before it, and did

not formally notify Artistic that it was considering the new claim s in the summary10

judgment proceedings, the merits of the claims wer e fully briefed and evidence was accepted and conside

red in conjunction w

ith the simultane

ous motion to am

end. Under these circ

umstances, A

rtistic had suffici

ent notice that the court might rule o n the supplemente

d claims. Fur

thermore, e

ven if the district court had forma lly told Artistic that the ne

w claims woul

d be addressed in the s

ummary judgment proceedings, we are conv inced that the outc ome would not have been d ifferent. As discussed below, the

district court had a

ll the informat

ion necessary t

o rule on the legal issues, and A

rtistic raised no ge

nuine question of m

aterial fact tha

t would have precluded summ

ary judgm

ent.

B. The Motion To Reopen Discovery

We review distr

ict court decisions concerning discovery only for an abuse

of discretion. Burger King Corp. v. Weaver , 169 F.3d 1310, 131 5 (11th Cir. 1999). Generally,

a motion for add

itional discovery

is properly deni

ed where a signifi

cant amount of discove

ry has already

been obtained and fur

ther discovery would not be helpful. Avirgan v. Hull , 932 F.2d 1572, 1580-81 (11th Cir. 1991). Artistic argues the district court e

rred by not gran

ting its motion to r

eopen discovery because further discovery

would show that the e

videntiary basis

on which the Am

ending11

Ordinance was passed was no longer reasonable, that the Amending Ordinance was adopted in violation of G eorgia’s Zoning P

rocedures Law,

that the Amend

ing Ordinance leaves

an inadequate num

ber of adult businesse s to locate within the City of Warner Robin

s, and that the Am

ending Ordinance uni

quely and advers ely affects Artistic. The district court

held further discove

ry would not be he

lpful primaril

y because all of these i ssues could have b een addressed much earlier i n the litigation
. Because the Am

ending Ordinance m

erely readopt

ed the same lan

guage concerning adult businesses conta

ined in the original A

dult Ordinance, A

rtistic could have challenged the zoning

aspects of the Ord

inance when the com

plaint was first f

iled in 1997. Moreover, t

he studies Artistic

wished to introduce w

ere provided to the C

ity Council when the Am

ending Ordinance w

as adopted. Ther

efore, whether

the council properly considered the studies is a question of law that further discovery would not resolve. U

nder these circum

stances, the distri

ct court did not abuse i

ts discretion in finding t

hat further discove

ry would not be he

lpful.

C. The Validity of the Amending Ordinance

We review a di strict court's gra nt of summa

ry judgme

nt de novo , applying the12

same standard as the district court, and reviewing all facts and reasonable inferences in a light most favorabl e to the nonmoving part y. Allison v. McGhan Med. Corp. , 184 F.3d 1300, 1306 (11t h Cir. 1999). Sum

mary jud gment is proper when “there i s no genuine issue as to a

ny materia

l fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When we last re

viewed this ma

tter, we decide

d the Adult Ordinance facially violated the First A

mendment be

cause it did not “

guarantee the adult

business owner the right to begin expressive activities within a brief, fixed time frame.” Artistic En tm’t , 223 F.3d at 1311. T he Adult Ordinance , as readopted by the Amendin g Ordin ance, no w requi res the City to a ct on an applic ation w ithin 45 days and provides that if th

e City fails to a

ct within that tim

e frame, th

e application will be automatical

ly approved, an

d “the applicant

shall have the right t

o begin operating in the manner a

llowed by the license for which appl ication was ma

de.” The additional language is

consistent with our holding in Redner v. Dean , 29 F.3d 1495, 1500-01 (11th Cir. 1994), where we decided that a time limit of 45 days in which the government m

ust act on a simil

ar license applica

tion avoided any pr

ior restraint problem only

if provision is ma

de to allow, withi

n a reasonable tim

e, the applicant to engage in the activ

ity for which l

icense is sought even a

bsent action on the license application
.12 The severability clause states “If any section, subsection, subdivision, paragraph, sentence, clause or phrase in th

is ordinanc e . . . is for any reason held to be unconstitutional or invalid or ineffective . . . such decision shall not affect the validity or effectiveness of the remaining portions of this ordinance.” (1 R. at Tab 10, Ex. B, § 1.170). 13 Artistic argues th

is court’s previou

s holding rendered the

entire Adult Ordinance void, so that the City cou ld not cure the Adult Ordinance through adoption of the Am

ending Ordinance. Rather, Artist ic contends the City ’s only option was to enact a new ordinance, complying with Georgia’s Zoning Procedures Law and conducting a new evidentiary hearing. On the other hand, the City argues that the presence of a severability clause in the Adult Ordinance 12 saved the portion of the Adult Ordina

nce that was re-a

dopted through the Am

ending Ordinance. The City also contend

s the Georgia Zoni

ng Procedures Law

is inapplicable to the ordinances at issue,

and that a new evide

ntiary hearing was not required.

1. The Severability of the Adult Ordinance
We apply Ge orgia l aw to det ermine wh at port ion of a Georgi a statu te, if an y, survives due to a seve

rability clause , when a portion of that statute is judic ially invalidated. See Smith v. Butte rworth , 866 F.2d 1318 (11th C ir. 1989) (apply

ing Florida law to determine the effect of a severability clause in a Florida statute). I n14

Chambers v. Peach County , 492 S .E.2d 191, 1 93 (Ga . 1997 ), the Georg ia Sup reme Court held that a severability clause in an unconstitutional county ordinance created “a pr

esumption that the

county intended f

or invalid provisions not

mutually dependent on other provisions to be severed, leaving the remainder of the ordinance intact.” We m

ust not, however,

“give to the stat

ute an effect alt

ogether different from that sought by it when considered as a whole.” City Council of A ugusta v. Mangelly , 254 S.E.2d 315, 320 (Ga. 1979) (H

ill, J., dissentin

g) (superseded by statute as noted in Nielubowicz v. C hatham County

, 312 S.E.2d 802, 803 n.1 (Ga. 1984)). Accordin

gly, under Ge

orgia law, we m

ust determine w

hether the invalid provisions of the Adult

Ordinance are m

utually dependent

upon any other por

tions of the Adult Ordina

nce, while at the

same time

preserving the origi

nal purpose of the ordinance. An examination

of the Adult Ordina

nce reveals that th

e entire ordinance

is designed to regulat e adult bu sinesses through a licensin g regime. The or dinance’s substantive requirem

ents are closely

intertwined with t

he licensing procedur

e and the two cannot be sep arated without disr upting the obvious purpose of the ordinance. Therefore, although the Adult Ordinance contains a severability clause, we conclude that no p art of the Adult Or dinance survived our d

ecision in Artistic Entertainme

nt , because the enti

re ordinance is depe

ndent upon a valid licen

sing15

regime. Because no part of the Adult Ordinance survived our previou s decision, the Amending Ordinance is val id only if it stands as an entirely “new” ordinance. Artistic argues th

at the Amendin

g Ordinance is not a valid “new” or dinance because it was not enacted i

n accordance with

Georgia’s Zoni

ng Procedures Law

and violates the procedur

al requireme

nts of the First Am

endment.

2. Georgia’s Zoning Procedures Law
Artistic argues the Amending Ordinance constitutes a zoning ordinance requiring a proper h earing pursuant to the Georgia Zoning Pro cedures Law. Georgia’s Zoni

ng Procedures Law

requires a local go

vernment to hold h

earings when it proposes to ta

ke action that will r

esult in a “zonin

g decision.” Ga.Code Ann. § 36-66-4 (2000) . The Georgia S upreme Court ha

s said the requirem

ents of the Zoning Procedur

es Law apply t

o the entire process

of enacting or am

ending a zoning ordinance
. Little v. City of Lawrencevil

le , 528 S.E.2d 515, 517 (Ga. 20 00). However, not eve

ry ordinance r

egulating the use of la

nd constitutes a zoning ordinance. For ins

tance, in Fairfax MK, In

c. v. City of

Clarkston , 555 S.E.2d 722 (Ga. 2001), the court decided that a Gasoline Service

Station Ordinance

was not a13 Ga. Code Ann. § 36-66-3(5) defines “zoning ordinance” as “an ordinance or

resolution of a local government establishing procedures and zones or districts within its respec tive territorial boundarie s which r egulate the uses and development standards of property within such zones or districts.” 16 “zoning ordinance” even though the ordi nance required a m

inimum dista

nce of 500 feet between a gas station and a school or other place of public assembly. The court came to this con

clusion because the de

finition of “zon

ing ordinance” under

the Georgia Zoning Law 13 encompasses onl y “regulat ion of uses and developm ent by means of zones or districts.” Id . at 724. Further more, the cou

rt stated: The regulation of certain types of businesses due to their

inherent character is not ge

neral and compr

ehensive like zoning .. . . The presence of lot siz

e requiremen

ts or space restric

tions does not transform a local licensing or regulatory ordinance into one governed by a zoning proce

dures statute wher

e it is clear from

a reading of the ordinance “as a whole that it is intended to regulate a particular occupation, rather t han to regulate the g eneral uses of land.” Id . (citations omitted). Under Fairfax , the Adult Ordina nce is not a “zon

ing ordinance” even though it does place certain limitations on locations available to an adult business and establishes certain minimum lot sizes and road frontages. Rather than regulating “general uses of land,” the Adult Ordinance regulates a particular type of activity -- adult entertainment. As such, the Amending Ordinance, readopting the Adult Or

dinance, is not a zon

ing ordinance and is not

subject to the hearing requirements established under the Zoning Procedures Law, even if it was17

adopted as a “ne

w” ordinance rat

her than as a true a

mendment.

3. The First Am

endment
Artistic also argu

es the Amending

Ordinance fails a

s a new enactm

ent because the City did not have a proper evidentiary basis for the ordinance as required by the First Amendm ent. We previou

sly concluded tha

t the Adult Ordinance was content neutral and subject to the O’Brien test. Artistic En tm’t , 223 F.3d at 1308-09. Under United States v. O’Brien , 391 U.S. 367 (19 68), content neutral restricti

ons on speech are val

id if the governm

ent can show a rea

sonable basis for believing it

s policy will inde

ed further a substan

tial government

interest and that the policy is t he least restriction possible which wou ld further that inte rest. See Sammy ’s of Mobile, L td. v. City of Mobile , 140 F.3d 993 (11th Cir. 1998). Previously, we decided that the City of Warner Robins, in enacting the original Adult Ordinance,

“had an adequat

e basis for concludin

g that proscribing the

sale and consumption of

alcohol would reduc e the crime a nd other social costs associated with adult businesses.” Artistic En tm’t , 223 F.3d at 1309. T herefore, the question before us is whether the City could rely on the original evidentiary support for the Adult Ordinanc e in adopting the Amendi ng Ordinance.18

In Renton v. Playtime Theatres, Inc. , 475 U.S. 41 (1986), the Supreme Court made it clear that it is entirely proper for a city to rely on the findings of other cities in creating legislat

ion to combat the negative secondary effects associat

ed with adult businesses. A

s long as “whate

ver evidence the ci

ty relies upon is r

easonably believed to be relev

ant to the problem

that the city ad

dresses,” such re

liance is appropriate. Id . at 51-52. Here , the City adopt ed an ordinance alm

ost identical to the original Adult O

rdinance, ma

king a slight adjustm

ent designed and intend

ed to correct the prior

restraint problem

found by this court. We cannot say that in enacting the Am

ending Ordinance the

City’s reli

ance on its own evide

ntiary basis compiled in support of the Adult Ordinance, which we specifically found adequate, was “unreasonable.”

D. The Alcohol Ordinance

We did not invalidat

e the Alcohol Ordi

nance in the previous appeal. But Artistic argues th

at the Alcohol Ord

inance is so intertw

ined with the void Adu

lt Ordinance, the Alcohol Ordinance should b e struck down as unacc eptably vague. The portion of the Alcohol Ordinance that prohibited the sale of alcoholic beverages at businesses “f

or which a license

is required pursuant

to Warner Robins ’ [Adult14 A municipal ordinance is essentially a “local statute;” it is subject to the same rules that

govern the construction of statutes. See 6 Eugene McQuillin, The Law of Municipal Corporations § 20.39 (3d ed. 2002) ; City of Atlanta v. Miller , 569 S.E.2d 907, 908 ( Ga. Ct. App. 2002) (“Constructionof an ordinance is a question of law

, subject to

the canons of statutory construction....”). 19 Ordinance],”

became unenfo

rceable when no va

lid Adult Ordinance

existed. But, we reject --

as did the district co

urt -- Artistic’ s contention that the C ity, pursuant to the amended Al

cohol Ordinance,

could not prohibit adult entertainment on the premises of es

tablishments off

ering alcoholic beve

rages. We look to Georgia law to determine whether the Alcohol Ordinance -- divested of the licen

sing cross-refer

ence -- survived our

decision invalidating t

he Adult Ordinance. 14 In Union City Boar d of Zoning Appeals v . Justice Outdoor Displays, Inc ., 467 S.E.2d 87 5 (Ga. 1996), the Georgia Suprem

e Court stated, “When a statute cannot be sustained as a whole, the courts will uphold it in part when it is reasonabl

y certain that to do so will correspond with the mai n purpose which the legislatur

e sought to accom

plish by its enact

ment, if, a

fter the objectionable part is stricken, enough remains to accomplish that purpose.” Id . at 884 (internal quotations and citation omitted). After striking the referenced licensing provisions, much remained of the amended Alcohol Ordinance that was consonant with the legislature’s purpose, and enough remained to accomplish that purpose.20

Artistic argues th

at the entire am

ended Alcohol Ordi

nance fails becaus e portions of the Alcohol Ordinance adopt by reference certain definitions contained in the void Adult Ord inance. We disagree. The Alcohol Ordinance incorporates by reference the definitions of “specified sexual activity” and “speci fied anatomical areas” cont ained in the Adult Ord inance. Incorporation by reference is a form of legislative shorthand; the effect of an incorporation by reference is the same as if the

referenced m

aterial were se

t out verbatim in the referencing statute. A legislature -- for example, a city council -- may look to an infinite variety of sources to reference in crafting its law as long as the referenced material is bo th certain and readil y available. We are awar

e of no authority to the effect that a definition incorpor ated by reference into a

nother otherwise va

lid ordinance (for example, the Alcohol Ordin ance) cease s to b e an op erati ve def init ion ju st bec ause i t deri ves fr om a referenced ordinance (for example, the Adult Ordinance) that was declared unconstitutional for r

easons having nothing to do with the definition.For incorporation purpose s, as long as the ref erenced definition

is certain and is re

adily available, it is valid: that the ordinance referenced has lapsed or has been repealed or has been invalid ated (for reasons unre lated to the defini tion) is not important
. See In re Heath , 12 S.Ct. 615, 6 16 (1892) (“Pr ior acts may

be incorporated in a21

subsequent one in term

s or by relation,

and when this is done th e repeal of the former leaves the latter in force, unless also repealed expressly or by necessary implication”). Georgia law rej ects the wholesale invalidation urged by

Artistic. In Town of Douglasville v. Johns , 62 Ga. 423, 427 (Ga. 1879), the Georgia Supreme Court concluded that a legi slative act granting a town charter w

as enforceable e

ven though the charter incor

porated by ref

erence certain c

ode sections declar

ed to be unconstitutional:

The legislature might have taken them [the referenced code p rovis ions ] from an Engli sh bo ok or f rom a newspaper, and e

ngrafted them on the charter; wh en it did so, it became

the law to this town a

nd all its citizens. Absent clearly

expressed legislati

ve intent to the contra

ry, when a sta

tute adopts by reference a def

inition in another stat

ute, the adopted def

inition becomes a

part of the adopting statute and is not affected by later amendment or repeal of the reference d act containing th e definition. See , Dismuke v. St ate , 236 S.E.2d 12,

14 (Ga. Ct. Ap

p. 1977) (“Does t

he deletion of the referenced statutes legally affe

ct the existence or enforcement of the adoptive Act? We find that it does not.”). The provisions of the

amended Alcoh

ol Ordinance that r

egulated exposure of “specified anatomical areas” and prohibited “specified sexual activity ” referenced15 We note that s ection 4-38 of the Alcohol Ordinance as it existed before the challenged

amendments, entitl

ed “Adult Entertainment,” already prohibited the sale of alcoholic bevera ges at any facility that permits public display of nudity . That earlier provision was seemingly not enforced. The amendment did

not delete or rep

lace expressly

this provision. When, however, the amendment was codified, it, too, was codified as section 4-38. It may be that the unamended section 4-38 survived the amendment. Or it may be that, even if the amendment to the Alcohol Ordinance was invalidated, the pre-existing section would apply. Because we do not rely on the unamended ordinance, we need not resol ve these questions . Suffice it to say that even

without concluding that the amended Alcohol Ordinance survived our prior restraint decision, we doub t A rtistic could prevail. 22 the Adult Ordinance only for definition of the quoted terms; those definitions are certain, readil

y available, a

nd their continued vali

dity is in harm

ony with the inte

nt of the legislature. The constitutional infirmity we found in the Adult Ordinance was unrelated to these r

eferenced defini

tions. The Alcohol

Ordinance rem

ained valid and enforceable. 15 AFFIRMED.