Brookhaven City Council voted Jan. 8 to delay a decision on adopting a new ordinance to regulate adult businesses.
On Dec. 17, the city adopted all of DeKalb County’s ordinances, including one regulating adult entertainment businesses. But council is looking to replace the county’s ordinance with one that has been adopted by other cities in the metro area, including Sandy Springs, Dunwoody, Johns Creek, and most recently, Doraville.
Attorney Scott Bergthold said the new ordinance is similar to the one already in place in DeKalb County. It would ban the sale of alcohol and prohibit contact between dancers and customers.
But Bergthold said “there are a number of constitutional defects” with DeKalb’s law that would not hold up in court.
Eight clubs in DeKalb, including the Pink Pony, signed a 2001 settlement agreement with the county which allowed the clubs to continue to sell alcohol in exchange for an annual $100,000 fee.
Pink Pony attorney Aubrey Villines argued that Brookhaven is bound to honor the settlement agreement. He said the DeKalb County ordinance has been effective, pointing out that no new strip clubs have opened in the area since.
“For some reason, legislation is being crafted that will put us out of business,” Villines said. “That’s going to put us in the courthouse. You don’t need to do that.”
Councilman Bates Mattison said the issue is one that could involve the city in costly litigation if the Pink Pony decides to sue.
“I believe it’s an issue that will have a tremendous economic impact on the city,” Mattison said.
Mattison said he wanted to table the issue to see if there is another solution.
“It’s a decision that potentially affects one or more businesses in the city,” Mattison said. “I believe it’s our duty to explore every option before we make a decision.”
But Bergthold said other cities and counties in the area have adopted the stronger ordinance to protect themselves before new adult businesses are a threat.
“Those cities didn’t wait until the wolf was at the door,” Bergthold said.
Bergthold presented the council with a number of documented cases, some local, illustrating the negative secondary effects that sexually-oriented businesses bring, including prostitution, drug trafficking and property crimes. He said research shows an increase of crime levels up to 1,000 feet around such businesses.
Bergthold said there is such a large volume of documented, negative secondary effects that courts do not require a local crime study.
“You don’t have to find it in the local case,” Bergthold said.
Nude dancing is protected as free speech under the First Amendment. Therefore, legislation would only regulate the proven secondary effects of such businesses.
“This ordinance doesn’t regulate what people can see,” Bergthold said.
Mattison asked Bergthold if the city could grandfather the Pink Pony under the current conditions before adopting the ordinance.
Bergthold said doing so would violate the Equal Protection clause by holding one business to different standards than another.
Mayor J. Max Davis said the adult business ordinance is just one of many DeKalb County laws the new city adopted.
“We adopted a sexually-oriented business ordinance along with 800 other pages of ordinances. I don’t want people to feel like we’re focusing on this one prurient area,” Davis said. “We have a duty to make sure our ordinances are fair. It’s just part of what we’re doing over the next six months to a year.”
Councilwoman Rebecca Chase Williams said the council must improve laws that are weak or flawed.
“In my mind it’s about looking at the best laws and code,” Williams said. “I’m kind of dismayed we’re having to spend so much time talking about this at the get-go.”
Mattison made a motion to table the vote until Jan. 14. It was approved unanimously.
Michael Cap, the Pink Pony’s chief operating officer, told the council the Pink Pony has been a good neighbor. He said there’s never been a prostitution arrest at the club and employees are drug-tested and take a Breathalyzer test before leaving each night.
“We’ve run a clean club for 22 years in DeKalb,” he said. “For all the secondary effects shown tonight, we have studies that say different.”
He said the Pink Pony would like to avoid a lawsuit and hopes the city will give the club a chance to prove itself.
“Right now, you’re making a judgment without even knowing us,” he said. “We’ve had a very clean and good reputation with DeKalb County for a long time and I’d like to continue that with Brookhaven.”
The city of Doraville, which recently adopted an ordinance similar to the one being considered in Brookhaven, was sued by the Oasis Goodtime Emporium on Dec. 31. That club was one of the eight that signed the 2001 settlement with DeKalb.
Davis said the decision to table the vote will give council more time to consider all the facts and options before making a decision.
“We just need to be careful and have our due diligence in place,” Davis said. “We’re going to be very deliberate with the decisions we make.”