Police, parks and zoning were common topics of conversation surrounding the formation of the city of Brookhaven last year. But few would have predicted that once the city started up, so much time would be dedicated to discussing strip clubs.
Just a few days after Brookhaven officially incorporated in December, City Council held a Saturday morning meeting to go through several housekeeping issues. Among them was a discussion of the city’s adult business regulations, which were inherited from DeKalb County.
Three lawyers offered their suggestions for ways the city could strengthen the rules to ensure no more adult businesses would be able to locate in the city. And another lawyer sat in the audience that day: Aubrey Villines, who represents the Pink Pony, the only strip club within Brookhaven’s city limits.
Scott Bergthold, a Chattanooga-based attorney who specializes in drafting and defending sexually-oriented business ordinances for local governments, was hired by the city. Bergthold has clients across the country, but has also represented cities and counties in metro Atlanta, including Sandy Springs, Johns Creek, Doraville and Bartow County. Through July, Brookhaven had paid Bergthold about $40,000, according to city records.
City Attorney Bill Riley and Bergthold have declined to comment on stories relating to the Pink Pony, citing the pending litigation.
Brookhaven City Council adopted a new sexually-oriented business ordinance, which bans nude dancing with the sale of alcohol and restricts contact between dancers and customers, among other things.
DeKalb County has a similar law on the books. But the county’s existing strip clubs, including the Pink Pony, are able to continue operating because of a settlement agreement that calls for the clubs to pay the county an annual licensing fee of $100,000.
Shortly after the new laws were adopted, the Pink Pony sued the city, claiming the ordinance would put their club out of business.
In the ensuing months, City Council kept discussions about the Pink Pony lawsuit mostly private. Under Georgia’s open meetings act, elected officials are allowed to discuss pending litigation behind closed doors.
But the subject has been brought up regularly by residents and representatives of the club, who have written letters to the editor and spoken out during city meetings, urging the city to leave the Pink Pony alone. They say the club hasn’t caused any problems and contributes money to the city’s coffers.
At an Aug. 27 meeting, City Council members had a rare candid public conversation with the city’s lawyers about the city’s adult business ordinance. When City Attorney Bill Riley attempted to end the conversation due to the pending lawsuit, Mayor J. Max Davis refused.
“I don’t care if you think it’s inappropriate,” Davis said. “I’m just trying to get some questions answered. We’re the ones getting the mailers with our faces on it. We’re the ones that are getting the phone calls and emails. … We’re taking a lot of flack on this issue and I want folks to realize the decisions we’ve made are not made out of some moral crusade. They’re made after lots and lots of thought and lots of discussion and lots of debate.”
Davis asked Bergthold a series of questions about the city’s ordinance. He said constituents frequently ask why the city can’t just grandfather the Pink Pony and allow it continue operating as is.
Bergthold said it’s not that simple. Like circumstances must be treated alike, he said.
“‘Grandfathering’ is a zoning term. Any business that is lawfully operating from a zoning perspective in their present location is ‘grandfathered.’ That means you’re allowed to continue a lawful, non-conforming use,” Bergthold said. “But on conduct regulations, that’s not a grandfathering context, and the courts have said what’s good for the goose is good for the gander.
“All of them have uniformly held that proscribing alcohol in combination with adult entertainment is a sound regulatory rationale, based on innumerable cases going back to 1972 in the U.S. Supreme Court.”
Davis said people tell him they would like for the city to find a way to allow the Pink Pony to stay.
“It’s a question I’ve heard from residents and one resident in particular: ‘Why can’t we allow … the Pink Pony to continue to operate while at the same time protecting my neighborhood from any new strip club or adult oriented business?” Davis said. “I’ve heard, ‘I’m fine with letting a club that’s existing operate, and continue to operate, as long as I don’t have one in my back yard.”
Bergthold said Brookhaven’s ordinance doesn’t require the Pink Pony to close. “They are allowed to operate. They are able to stay where they are at, at the zoning district they are at, provided they are lawful,” Bergthold said.
Davis asked Villines to submit draft legislation to the City Clerk that would let the city accomplish what it wants while allowing the Pink Pony to operate in its current format.
Villines suggested the current settlement agreement with DeKalb – but the mayor said the city isn’t interested in taking money from the clubs to allow them to ignore the laws.
“I think you have insurance. You just want different insurance,” Villines said.
Villines accused the city of looking for a solution to a problem that doesn’t exist. He said no new strip clubs have opened in DeKalb County since the 1992 settlement agreement.
“You have a group of lawyers come in and say ‘you must do this to protect the city.’ Bull,” Villines said.
Villines warned the City Council that Sandy Springs has been in a lawsuit with its strip clubs over a similar ordinance since 2006. He said Sandy Springs has already spent more than $160,000 on the litigation since 2009.
“Those clubs are still in existence. That lawsuit is still in existence. It hasn’t solved anything. The same issues are involved,” Villines said. “Some of the differences? The Pony has a better record. A much better record. And we have a lot more money.”