## Facts

- The City of Atlanta enacted an ordinance on October 4, 1993, regulating “lingerie modeling studios.”
- The City asserted the ordinance targeted undesirable secondary effects, particularly prostitution and related crime.
- Operators of lingerie-modeling studios filed suit seeking declaratory and injunctive relief, alleging the ordinance violated constitutional free-speech protections applicable to adult-oriented businesses.
- At trial, the City offered testimony from three vice-squad officers opining that lingerie modeling studios correlated with prostitution.
- The record did not show that the City Council considered those officer opinions, any studies, or other evidence before passing the ordinance.
- The ordinance and its preamble did not identify studies, reports, or other evidentiary materials relied upon for the asserted secondary effects.
- The superior court upheld the ordinance’s constitutionality, and the business operators appealed.

## Issues

1. Whether an ordinance regulating adult-oriented businesses as a secondary-effects measure is constitutional when the city cannot show it relied on specific evidence of the asserted secondary effects at the time of enactment.

## Decision

- The Supreme Court of Georgia reversed the superior court.
- The court held the City failed to prove it relied on specific evidence of secondary effects when it enacted the ordinance.
- Because the City could not identify pre-enactment evidence supporting the secondary-effects rationale, the ordinance could not be sustained as constitutional under that framework.

## Legal Principles

- When a governing body regulates adult-oriented businesses based on purported undesirable secondary effects, it must rely on specific evidence showing a correlation between the regulated businesses and the targeted effects.
- The evidentiary basis may include studies from other jurisdictions, the locality’s own studies, or other non-study evidence (e.g., reports, meetings, discussions), but it must be considered before the ordinance is passed.
- In litigation, the government must be able to produce the studies or evidence it relied upon at enactment; post-hoc testimony alone, without proof of legislative reliance, is insufficient.
- If the government cannot show contemporaneous reliance on such evidence, the ordinance cannot be deemed constitutional as a secondary-effects regulation of protected expression.

## Conclusion

The court invalidated Atlanta’s lingerie-modeling-studio ordinance because the City did not demonstrate that the City Council actually relied on any specific pre-enactment evidence linking the regulated businesses to the asserted secondary effects, and post-enactment officer opinions could not supply the required legislative evidentiary basis.


Secret Desires Lingerie, Inc. v. City of Atlanta, 266 Ga. 760, 470 S.E.2d 879 (1996)