The Georgia Supreme Court says the city of Brookhaven can legally ban the Pink Pony strip club.
In a ruling released today, the high court unanimously upheld a lower court’s dismissal of lawsuit brought against against the city by the Pink Pony’s owners to challenge a city law banning nude dancing in places where alcohol is consumed.
“Today, the Georgia Supreme Court affirmed that the City of Brookhaven is not bound by Pink Pony’s agreement with DeKalb County, and that Brookhaven’s sexually oriented business ordinance is constitutional as a matter of law,” read a statement from the city of Brookhaven following the ruling. “The city will continue to defend all of its ordinances. The council’s adoption of legally-valid regulations-like those in place in DeKalb County and in cities across Georgia-has never been about one business, but about having sound ordinances that protect the long-term interests of the city and its residents.”
Justice Harold Melton wrote that given “the established record regarding the deleterious effects of alcohol coupled with nude dancing, the trial court did not err by finding that, as a matter of law, Brookhaven’s sexually-oriented business ordinance does not unconstitutionally infringe upon Pink Pony’s free speech rights,” according to a press release from the high court.
Here is the full text of the press release:
The city of Brookhaven has won the right to ban adult entertainment businesses that sell alcohol under a ruling today by the Supreme Court of Georgia.
In this high profile case, the high court has unanimously upheld a DeKalb County court’s dismissal of the Pink Pony strip club’s lawsuit against the new city government of Brookhaven. The Atlanta area strip club had challenged as an unconstitutional violation of free speech the City’s new ordinance that bans nude dancing in establishments where alcohol is consumed.
But in today’s ruling, Justice Harold Melton writes for the Court that given “the established record regarding the deleterious effects of alcohol coupled with nude dancing, the trial court did not err by finding that, as a matter of law, Brookhaven’s sexually-oriented business ordinance does not unconstitutionally infringe upon Pink Pony’s free speech rights.”
Brookhaven is a new Georgia city that became incorporated Dec. 17, 2012. The Pink Pony strip club has been in business for 22 years, serving food and alcohol, along with nude dancing, since licensed to do so by DeKalb County in November 1990. Trop, Inc. operates the club, which has always been on Corporate Boulevard and is now located in the southernmost area of newly incorporated Brookhaven. From 1991 to 2001, the Pink Pony and other adult entertainment businesses filed several lawsuits against DeKalb County for enacting ordinances like Brookhaven’s that prohibit total nudity and liquor in adult businesses. Eventually, a number of the establishments entered into a Settlement and Release Agreement with DeKalb County in which the businesses agreed to dismiss pending damages actions in exchange for the right to continue operations. The agreement was extended in 2007 for a minimum of 15 years. The establishments also agreed to pay the County an increased, graduated licensing fee, which for Pink Pony in recent years amounted to $100,000 a year.
On Jan. 14, 2013, less than a month after Brookhaven incorporated, its new City Council passed its own “Sexually Oriented Business Code,” an ordinance that bans consumption of alcohol combined with fully nude dancing. Of particular importance to Pink Pony, the ordinance, in conjunction with Brookhaven’s Alcohol Code, prohibits the sale of alcohol in sexually-oriented businesses and allows only semi-nudity (g-strings and pasties), not full nudity. The Council found that sexually oriented businesses were associated with a wide variety of “adverse secondary effects,” including crime, prostitution, public indecency, illegal drug use and trafficking, urban blight and sexual assault. The Council further found that alcohol consumption increased the risk of those effects.
In May 2013, Pink Pony sued the City, its Mayor, its City Council members and its City Clerk, claiming that the sexually oriented business ordinance was unconstitutional and that Pink Pony was exempt from the ordinance based on its settlement agreement with DeKalb County. The City responded with a motion asking the court to dismiss the case and to issue a “Judgment on the Pleadings,” or a ruling in the City’s favor based on its briefs and supporting documents. The trial court ruled in Brookhaven’s favor, finding that the Code was constitutional and that the agreement Pink Pony had with DeKalb County violated Georgia law (Official Code of Georgia § 36-10-3), which states that “[o]ne council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” The court further found that because Pink Pony was a sexually oriented business barred from serving alcohol, it was not subject to the regulations of the Alcohol Code and therefore lacked any right to challenge them. Pink Pony then appealed to the state Supreme Court.
Pink Pony’s attorneys argued that the trial court made a number of errors, but in today’s opinion, the state Supreme Court has rejected them all. Pink Pony’s main argument is that the trial court was wrong in concluding the ordinance passed the constitutional standards regarding free speech laid out in the Georgia Supreme Court’s 1982 ruling in Paramount Pictures Corp. v. Busbee. That decision posed three questions: “(1) Does the [legislation] further an important governmental interest? (2) Is that interest unrelated to the suppression of speech? and (3) Is the legislation an incidental restriction of speech no greater than essential to further the important governmental interest?”
The opinion states that the ordinance passes all three prongs of the Paramount Pictures test. “First, it furthers the important government interests of ‘attempting to preserve the quality of urban life,’ and ‘reducing criminal activity and preventing the deterioration of neighborhoods,” the opinion says. “These goals, in turn, are not related to any desire to suppress speech.” Finally, “any incidental restriction of speech caused by the ordinance is no greater than essential to further these important governmental interests.”
“Pink Pony’s contention that Brookhaven should be bound by the prior agreement between Pink Pony and DeKalb County does not change this result,” today’s opinion says. “As found by the trial court, this prior agreement cannot be used to bind the successively incorporated City of Brookhaven.”