FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 MAY 28, 2003 

 THOMAS K. KAHN 

 CLERK

*Honorable Edwin L. Nelson, United States District Judge for the Northern District of

Alabama, sitting by designation. This case is being decided by a quorum due to the death of Judge

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 No. 97-00195 CV-4-HL-5 

ARTISTIC ENTERTAINMENT,

INC., a Georgia Corporation d.b.a 

Teasers, STEPHEN R. DEWBERRY,

Plaintiffs-Appellants,

versus

CITY OF WARNER ROBINS,

DONALD WALKER, Individually

and in his capacity as Mayor of the

City of Warner Robins, et al.,

Defendants-Appellees.

_________________________________________

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.
1The Adult Ordinance also specified that adult businesses (1) could not be located within

1,000 ft. of a school, church, licensed child care center, public park, or property zoned or used for

residential purposes; (2) could not be within 1,000 ft. of another location licensed as an Adult

Business or an Alcohol Merchant; 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 consumption of alcoholic beverages at adult entertainment

facilities. The first ordinance, Ordinance 18-97, titled “An Ordinance Regulating

Adult Businesses” (the “Adult Ordinance”), among other things, established a

licensing scheme for operation of an “adult business” within city limits 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 Warner Robins Alcoholic Beverage Ordinance” (“Alcohol

Ordinance”), amended the City’s alcohol licensing laws to prohibit the selling,

serving, or dispensation of alcoholic beverages by any “adult business.”2

 The City

Council approved the ordinances after an evidentiary hearing in which council

members had an opportunity to review studies and testimony of state officials

regarding the combined effects of alcohol and adult entertainment.

The plaintiffs/appellants, who own and operate an adult entertainment
3

establishment that sells alcohol and offers nude dancing in the City, brought this

action to challenge both ordinances on constitutional grounds.

I. PROCEDURAL HISTORY

This is the third appeal in this litigation. Initially, this court vacated the

district court’s order enjoining the implementation of the ordinances, finding that it

had not accorded sufficient weight to the evidentiary basis that supported adoption

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

Alcohol Ordinance were content-neutral and subject to the intermediate level of

scrutiny established by United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20

L. Ed. 2d 672 (1968), and that the Warner Robins City Council had an adequate

basis for concluding that a proscription on the sale and consumption of alcohol at

adult businesses would reduce the crime and other social costs associated with those

businesses. Artistic Entm’t, Inc. v. City of Warner Robins, 223 F.3d 1306, 1308-10

(11th Cir. 2000). We also concluded that the Adult Ordinance was not

unconstitutionally vague, but that it did operate as an unconstitutional prior restraint

on expression because it did not provide for an applicant’s right to begin operating

his business within a reasonable time if the City failed to act on his application as
3

2 R. at Tab 72, Ex. B.

4The City initially agreed that neither ordinance would be enforced while the case was being

litigated. However, on December 16, 1999, after the district court granted the City summary

judgment on all counts, the City began enforcing the ordinances against 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

required by Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994). Artistic Entm’t, 223

F.3d at 1310-11.

After remand, the City enacted Ordinance 57-00, entitled “An Ordinance to

Amend the Ordinance Regulating Adult Businesses” (“Amending Ordinance”).3

The Amending Ordinance re-adopted the Adult Ordinance in all respects, but

additionally provides in pertinent part:

If the City Council 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, then on the expiration of the forty-fifth

(45th) day: (1) the application shall be approved and the City Clerk

shall immediately issue the license for which application was made,

and (2) the applicant shall have the right to begin operating in the

manner allowed by the license for which application was made.

In subsequent proceedings, the district court found Artistic was not entitled to

damages for the period during which the City required it to refrain from offering

alcoholic beverages in conjunction with nude dancing.4

 Agreeing with Artistic that

the entire Adult Ordinance was unenforceable, but concluding the Alcohol

Ordinance was legitimately enforced, the district court then invited the parties to file
5

2 R. at Tabs 65-68.

6R2 R. at Tab 72.

7

2 R. at Tab 74.

8

2 R. at Tab 78, p. 1.

5

motions “related to the issue of whether the prior restraint problems with the Adult

Ordinance have been cured” by the adoption of the Amending Ordinance.5

The City filed a motion for summary judgment arguing that the Amending

Ordinance had cured the prior restraint problem. Artistic filed a motion to reopen

discovery and a motion to amend its complaint, contending: the Amending

Ordinance did not cure the prior restraint problem; new evidence would show the

Amending Ordinance lacked any evidentiary basis as required by the United States

and Georgia constitutions; and, the Amending Ordinance was not enacted in

accordance with the notice and hearing procedures required by Georgia zoning

laws.6

 In its response to the City’s motion for summary judgment, Artistic reiterated

its arguments that the Amending Ordinance failed to cure the prior restraint problem

and violated the Georgia zoning laws.7 Artistic invited the district court to consider

the summary judgment facts and legal argument in conjunction with its motion to

supplement, noting “the issues raised and argued in the motions overlap to a large

degree.”8 
9Artistic had argued that the validity of the Amending Ordinance was not properly before the

court without an amendment to the pleadings. The City acquiesced to the amendment, but contended

it was, nevertheless, entitled to summary judgment regarding the validity of the Amending

Ordinance. 

6

In the context of these pending motions, and after accepting evidence in

support of Artistic’s motion, the district court granted Artistic’s motion to file an

amended complaint9

 but, finding the Amending Ordinance was valid, also granted

the City’s motion for summary judgment on all claims. Finding that additional

discovery would not be helpful, the district court denied Artistic’s request to reopen

discovery. This appeal followed.

II. ISSUES

Artistic argues the district court granted summary judgmentsua sponte on the

supplemented claims, without providing notice or an opportunity for Artistic to

come forward with evidence to show that the supplemented claims created a

genuine issue of material fact. Artistic also argues the district court improperly

denied its request to reopen discovery. Artistic further argues the Amending

Ordinance is invalid because: (1) the unconstitutional portions of the Adult

Ordinance were not severable, so that the entire Adult Ordinance was void, and
7

could not be adopted by reference in the Amending Ordinance; (2) the adoption of

the Amending Ordinance violated Georgia’s Zoning Procedures Law; and (3)

adoption of the Amending Ordinance violated the First Amendment because the

City lacked a proper evidentiary basis to support its passage. Finally, Artistic

argues the district court erred in holding the Alcohol Ordinance enforceable even

though portions of it adopt by reference definitions contained in the void Adult

Ordinance.

III. DISCUSSION

A. The Grant of Summary Judgment

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 at least ten days in which to formulate and

prepare their best opposition to an impending assault upon the continued viability of

their claim or defense.” Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417

(11th Cir. 1997) (citations omitted). We have, however, distinguished between sua

sponte grants of summary judgment in cases involving purely legal questions based
10Other circuits reviewing sua sponte grants of summary judgment have been similarly

concerned with the completeness of the evidentiary record before the trial court. In Ramsey v.

Coughlin, 94 F.3d 71 (2nd Cir. 1996), the court reversed a district court’s grant of summary

judgment sua sponte in favor of the defendant because “an orderly and reviewable record” did not

exist. Id. at 74. However, the court made it clear that:

Where it appears clearly upon the record that all of the evidentiary materials that a

party might submit in response to a motion for summary judgment are before the

court, a sua sponte grant of summary judgment against that party 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 evidentiary records, and cases involving factual disputes where the

non-moving party has not been afforded an adequate opportunity to develop the

record.10 For instance, in Massey, in reversing the district court’s sua sponte grant

of summary judgment, we distinguished Black Warrior Electric Membership Corp.

v. Mississippi Power Co., 413 F.2d 1221 (5th Cir. 1969), emphasizing that Black

Warrior involved a sua sponte grant of summary judgment on a purely legal issue,

while the issue upon which the district court granted summary judgment in Massey

involved a question of fact which the non-moving party had not been afforded an

adequate opportunity to develop. Massey, 116 F.3d at 1418; Black Warrior

Electric, 413 F.2d at 1226. Likewise, in Burton v. City of Belle Glade, 178 F.3d

1175 (11th Cir. 1999), we made it clear that where a legal issue has been fully

developed, and the evidentiary record is complete, summary judgment is entirely
11Other circuits have similarly held that formal notice is not always required. E.g. Bridgeway

Corp. v. Citibank, 201 F.3d 134, 140 (2nd Cir. 2000) (holding that the district court properly granted

a defendant summary judgment sua sponte even though the plaintiff had not been given any notice

because “nothing in the record [indicated] that Bridgeway was procedurally prejudiced by the district

court’s failure to give notice that it was considering a sua sponte grant of summary judgment in favor

of Citibank” 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 judgment 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 alsoRoss v. Univ. 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 court to simultaneously

permit the plaintiff to amend a complaint to reinstate previously dismissed defendants and grant

those reinstated defendants summary judgment sua sponte on the added claims). 

9

appropriate even if no formal notice 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 previous admonition

that summary judgment should be granted sua sponte only in those circumstances in

which the dismissed claims have been fully developed in the evidentiary record and

the non-moving party has received adequate notice. Here, the district court’s April

16, 2001, order made it clear that both parties were expected to come forward with

motions “related to” the constitutionality of the Adult Ordinance following the

adoption of the Amending Ordinance. Furthermore, although the district court had

no formal motion for summary judgment on the new claims before it, and did not

formally notify Artistic that it was considering the new claims in the summary
10

judgment proceedings, the merits of the claims were fully briefed and evidence was

accepted and considered in conjunction with the simultaneous motion to amend.

Under these circumstances, Artistic had sufficient notice that the court might rule on

the supplemented claims. Furthermore, even if the district court had formally told

Artistic that the new claims would be addressed in the summary judgment

proceedings, we are convinced that the outcome would not have been different. As

discussed below, the district court had all the information necessary to rule on the

legal issues, and Artistic raised no genuine question of material fact that would have

precluded summary judgment.

B. The Motion To Reopen Discovery

We review district court decisions concerning discovery only for an abuse of

discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999). 

Generally, a motion for additional discovery is properly denied where a significant

amount of discovery has already been obtained and further discovery would not be

helpful. Avirgan v. Hull, 932 F.2d 1572, 1580-81 (11th Cir. 1991). Artistic argues

the district court erred by not granting its motion to reopen discovery because

further discovery would show that the evidentiary basis on which the Amending
11

Ordinance was passed was no longer reasonable, that the Amending Ordinance was

adopted in violation of Georgia’s Zoning Procedures Law, that the Amending

Ordinance leaves an inadequate number of adult businesses to locate within the City

of Warner Robins, and that the Amending Ordinance uniquely and adversely affects

Artistic. 

The district court held further discovery would not be helpful primarily

because all of these issues could have been addressed much earlier in the litigation. 

Because the Amending Ordinance merely readopted the same language concerning

adult businesses contained in the original Adult Ordinance, Artistic could have

challenged the zoning aspects of the Ordinance when the complaint was first filed in

1997. Moreover, the studies Artistic wished to introduce were provided to the City

Council when the Amending Ordinance was adopted. Therefore, whether the

council properly considered the studies is a question of law that further discovery

would not resolve. Under these circumstances, the district court did not abuse its

discretion in finding that further discovery would not be helpful.

C. The Validity of the Amending Ordinance

We review a district court's grant of summary judgment de novo, applying the
12

same standard as the district court, and reviewing all facts and reasonable inferences

in a light most favorable to the nonmoving party. Allison v. McGhan Med. Corp.,

184 F.3d 1300, 1306 (11th Cir. 1999). Summary judgment is proper when “there is

no genuine issue as to any material fact and . . . the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

When we last reviewed this matter, we decided the Adult Ordinance facially

violated the First Amendment because it did not “guarantee the adult business

owner the right to begin expressive activities within a brief, fixed time frame.” 

Artistic Entm’t, 223 F.3d at 1311. The Adult Ordinance, as readopted by the

Amending Ordinance, now requires the City to act on an application within 45 days

and provides that if the City fails to act within that time frame, the application will

be automatically approved, and “the applicant shall have the right to begin operating

in the manner allowed by the license for which application was made.” 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 must act on a similar license application avoided any prior restraint

problem only if provision is made to allow, within a reasonable time, the applicant

to engage in the activity for which license is sought even absent action on the

license application.
12The severability clause states “If any section, subsection, subdivision, paragraph, sentence,

clause or phrase in this ordinance . . . 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 this court’s previous holding rendered the entire Adult

Ordinance void, so that the City could not cure the Adult Ordinance through

adoption of the Amending Ordinance. Rather, Artistic 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 Ordinance12 saved the portion

of the Adult Ordinance that was re-adopted through the Amending Ordinance. The

City also contends the Georgia Zoning Procedures Law is inapplicable to the

ordinances at issue, and that a new evidentiary hearing was not required.

 

1. The Severability of the Adult Ordinance

We apply Georgia law to determine what portion of a Georgia statute, if any,

survives due to a severability clause, when a portion of that statute is judicially

invalidated. See Smith v. Butterworth, 866 F.2d 1318 (11th Cir. 1989) (applying

Florida law to determine the effect of a severability clause in a Florida statute). In
14

Chambers v. Peach County, 492 S.E.2d 191, 193 (Ga. 1997), the Georgia Supreme

Court held that a severability clause in an unconstitutional county ordinance

created “a presumption that the county intended for invalid provisions not mutually

dependent on other provisions to be severed, leaving the remainder of the ordinance

intact.” We must not, however, “give to the statute an effect altogether different

from that sought by it when considered as a whole.” City Council of Augusta v.

Mangelly, 254 S.E.2d 315, 320 (Ga. 1979) (Hill, J., dissenting) (superseded by

statute as noted in Nielubowicz v. Chatham County, 312 S.E.2d 802, 803 n.1 (Ga.

1984)). Accordingly, under Georgia law, we must determine whether the invalid

provisions of the Adult Ordinance are mutually dependent upon any other portions

of the Adult Ordinance, while at the same time preserving the original purpose of

the ordinance.

An examination of the Adult Ordinance reveals that the entire ordinance is

designed to regulate adult businesses through a licensing regime. The ordinance’s

substantive requirements are closely intertwined with the licensing procedure and

the two cannot be separated without disrupting the obvious purpose of the

ordinance. Therefore, although the Adult Ordinance contains a severability clause,

we conclude that no part of the Adult Ordinance survived our decision in Artistic

Entertainment, because the entire ordinance is dependent upon a valid licensing
15

regime.

Because no part of the Adult Ordinance survived our previous decision, the

Amending Ordinance is valid only if it stands as an entirely “new” ordinance. 

Artistic argues that the Amending Ordinance is not a valid “new” ordinance because

it was not enacted in accordance with Georgia’s Zoning Procedures Law and

violates the procedural requirements of the First Amendment.

2. Georgia’s Zoning Procedures Law

Artistic argues the Amending Ordinance constitutes a zoning ordinance

requiring a proper hearing pursuant to the Georgia Zoning Procedures Law. 

Georgia’s Zoning Procedures Law requires a local government to hold hearings

when it proposes to take action that will result in a “zoning decision.” Ga. Code

Ann. § 36-66-4 (2000). The Georgia Supreme Court has said the requirements of

the Zoning Procedures Law apply to the entire process of enacting or amending a

zoning ordinance. Little v. City of Lawrenceville, 528 S.E.2d 515, 517 (Ga. 2000). 

However, not every ordinance regulating the use of land constitutes a zoning

ordinance. For instance, in Fairfax MK, Inc. v. City of Clarkston, 555 S.E.2d 722

(Ga. 2001), the court decided that a Gasoline Service Station Ordinance was not a
13Ga. 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 respective territorial

boundaries which regulate the uses and development standards of property within such zones or

districts.” 

16

“zoning ordinance” even though the ordinance required a minimum distance of 500

feet between a gas station and a school or other place of public assembly. The court

came to this conclusion because the definition of “zoning ordinance” under the

Georgia Zoning Law13 encompasses only “regulation of uses and development by

means of zones or districts.” Id. at 724. Furthermore, the court stated:

The regulation of certain types of businesses due to their inherent

character is not general and comprehensive like zoning . . . . The

presence of lot size requirements or space restrictions does not

transform a local licensing or regulatory ordinance into one governed

by a zoning procedures statute where it is clear from a reading of the

ordinance “as a whole that it is intended to regulate a particular

occupation, rather than to regulate the general uses of land.”

Id. (citations omitted). Under Fairfax, the Adult Ordinance is not a “zoning

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 Ordinance, is not a zoning ordinance and is not subject to the

hearing requirements established under the Zoning Procedures Law, even if it was
17

adopted as a “new” ordinance rather than as a true amendment.

3. The First Amendment

Artistic also argues the Amending Ordinance fails as a new enactment

because the City did not have a proper evidentiary basis for the ordinance as

required by the First Amendment. We previously concluded that the Adult

Ordinance was content neutral and subject to the O’Brien test. Artistic Entm’t, 223

F.3d at 1308-09. Under United States v. O’Brien, 391 U.S. 367 (1968), content

neutral restrictions on speech are valid if the government can show a reasonable

basis for believing its policy will indeed further a substantial government interest

and that the policy is the least restriction possible which would further that interest. 

See Sammy’s of Mobile, Ltd. 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 adequate basis for concluding that proscribing the sale

and consumption of alcohol would reduce the crime and other social costs

associated with adult businesses.” Artistic Entm’t, 223 F.3d at 1309. Therefore, the

question before us is whether the City could rely on the original evidentiary support

for the Adult Ordinance in adopting the Amending 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 legislation to combat the negative secondary effects associated with

adult businesses. As long as “whatever evidence the city relies upon is reasonably

believed to be relevant to the problem that the city addresses,” such reliance is

appropriate. Id. at 51-52. Here, the City adopted an ordinance almost identical to

the original Adult Ordinance, making a slight adjustment designed and intended to

correct the prior restraint problem found by this court. We cannot say that in

enacting the Amending Ordinance the City’s reliance on its own evidentiary basis

compiled in support of the Adult Ordinance, which we specifically found adequate,

was “unreasonable.”

D. The Alcohol Ordinance

We did not invalidate the Alcohol Ordinance in the previous appeal. But

Artistic argues that the Alcohol Ordinance is so intertwined with the void Adult

Ordinance, the Alcohol Ordinance should be struck down as unacceptably vague. 

The portion of the Alcohol Ordinance that prohibited the sale of alcoholic beverages

at businesses “for which a license is required pursuant to Warner Robins’ [Adult
14A 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)

(“Construction of an ordinance is a question of law, subject to the canons of statutory

construction....”). 

19

Ordinance],” became unenforceable when no valid Adult Ordinance existed. But,

we reject -- as did the district court -- Artistic’s contention that the City, pursuant to

the amended Alcohol Ordinance, could not prohibit adult entertainment on the

premises of establishments offering alcoholic beverages.

We look to Georgia law to determine whether the Alcohol Ordinance --

divested of the licensing cross-reference -- survived our decision invalidating the

Adult Ordinance.14 In Union City Board of Zoning Appeals v. Justice Outdoor

Displays, Inc., 467 S.E.2d 875 (Ga. 1996), the Georgia Supreme Court stated,

“When a statute cannot be sustained as a whole, the courts will uphold it in part

when it is reasonably certain that to do so will correspond with the main purpose

which the legislature sought to accomplish by its enactment, if, after 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 that the entire amended Alcohol Ordinance fails because

portions of the Alcohol Ordinance adopt by reference certain definitions contained

in the void Adult Ordinance. We disagree. 

The Alcohol Ordinance incorporates by reference the definitions of “specified

sexual activity” and “specified anatomical areas” contained in the Adult Ordinance. 

Incorporation by reference is a form of legislative shorthand; the effect of an

incorporation by reference is the same as if the referenced material were set 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 both certain and readily available. 

We are aware of no authority to the effect that a definition incorporated by

reference into another otherwise valid ordinance (for example, the Alcohol

Ordinance) ceases to be an operative definition just because it derives from a

referenced ordinance (for example, the Adult Ordinance) that was declared

unconstitutional for reasons having nothing to do with the definition. For

incorporation purposes, as long as the referenced definition is certain and is readily

available, it is valid: that the ordinance referenced has lapsed or has been repealed

or has been invalidated (for reasons unrelated to the definition) is not important. See

In re Heath, 12 S.Ct. 615, 616 (1892) (“Prior acts may be incorporated in a
21

subsequent one in terms or by relation, and when this is done the repeal of the

former leaves the latter in force, unless also repealed expressly or by necessary

implication”).

Georgia law rejects 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 legislative act granting a town charter was enforceable even though

the charter incorporated by reference certain code sections declared to be

unconstitutional:

The legislature might have taken them [the referenced

code provisions] from an English book or from a

newspaper, and engrafted them on the charter; when it did

so, it became the law to this town and all its citizens.

Absent clearly expressed legislative intent to the contrary, when a statute adopts by

reference a definition in another statute, the adopted definition becomes a part of the

adopting statute and is not affected by later amendment or repeal of the referenced

act containing the definition. See, Dismuke v. State, 236 S.E.2d 12, 14 (Ga. Ct. App.

1977) (“Does the deletion of the referenced statutes legally affect the existence or

enforcement of the adoptive Act? We find that it does not.”).

 The provisions of the amended Alcohol Ordinance that regulated exposure of

“specified anatomical areas” and prohibited “specified sexual activity” referenced
15We note that section 4-38 of the Alcohol Ordinance as it existed before the challenged

amendments, entitled “Adult Entertainment,” already prohibited the sale of alcoholic beverages at

any facility that permits public display of nudity. That earlier provision was seemingly not enforced.

The amendment did not delete or replace 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 resolve these questions. Suffice it to say that even without concluding that

the amended Alcohol Ordinance survived our prior restraint decision, we doubt Artistic could

prevail.

22

the Adult Ordinance only for definition of the quoted terms; those definitions are

certain, readily available, and their continued validity is in harmony with the intent

of the legislature. The constitutional infirmity we found in the Adult Ordinance was

unrelated to these referenced definitions. The Alcohol Ordinance remained valid

and enforceable.15

AFFIRMED.