Starship Enterprises of Atlanta, Inc. v. Gwinnett County, Georgia

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 05, 2018
The Court of Appeals hereby passes the following order:
A18D0325. STARSHIP ENTERPRISES OF ATLANTA, INC. v. GWINNETT
COUNTY, GEORGIA.
In 2015, the Gwinnett County Board of Commissioners (the “Board”) adopted
new regulations for adult establishments, including retail stores that sell sex
paraphernalia. Starship Enterprises of Atlanta, Inc. (“Starship”), an operator of two
such stores, filed suit seeking declaratory and injunctive relief, arguing that certain
provisions of the county ordinance violated the Georgia Constitution as they were
unconstitutionally vague and regulated stand-alone adult stores differently than stores
in a shopping mall. The Board moved for summary judgment, and also filed a
counter-claim for a permanent injunction enjoining Starship from operating a sex
paraphernalia store within the county. The trial court granted the Board’s motion for
summary judgment,1 as well as its request for a permanent injunction. Starship then
filed this application for discretionary appeal. It appears, however, that jurisdiction
may be proper in the Supreme Court.
The Supreme Court has exclusive jurisdiction over “[a]ll cases involving the
construction of . . . the Constitution of the State of Georgia” and “all cases in which
the constitutionality of a law, ordinance, or constitutional provision has been drawn
into question[.]” Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1); see Atlanta
1
Starship voluntarily dismissed its complaint upon the Board’s filing of its
motion for summary judgment. The trial court, however, found that Starship
presented two constitutional arguments at the summary judgment hearing, and the
court ruled on those arguments. There is no indication in the application materials
that the case was dismissed prior to the entry of the trial court’s order.
Independent School System v. Lane, 266 Ga. 657, 657-658 (1) (469 SE2d 22) (1996).
Because Starship’s complaint challenges the constitutionality of certain provisions
of the Board’s ordinance, it appears that jurisdiction over the application may lie in
the Supreme Court, despite the fact that the application may ultimately be resolved
on other grounds. See Harrison v. Wigington, 269 Ga. 388, 388 (497 SE2d 568)
(1998) (“If a constitutional question is raised and ruled on below, [the Supreme]
[C]ourt has exclusive appellate jurisdiction, and this is true, although upon a
consideration of the entire case, [the Supreme] [C]ourt determines that a decision
upon such constitutional questions is not necessary to a proper solution of the case,
and makes no decision thereon.”) (punctuation omitted).
As the Supreme Court has the ultimate responsibility for determining appellate
jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476
SE2d 587) (1996), this application is hereby TRANSFERRED to the Supreme Court
for disposition.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/05/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.