Restaurants in Brookhaven can begin selling alcohol at 11 a.m. beginning Sunday following overwhelming approval of the “brunch bill” referendum on Nov. 7 and an amendment to the Brookhaven alcohol code approved by the City Council Nov. 13.

But the new law also appears to prohibit the sale of alcohol past midnight on Sunday in Brookhaven, according to the city attorney, casting doubt on the council’s recent decision to extend Sunday hours for nightlife venues from midnight until 2 a.m.

The City Council voted Nov. 13 to approve an amendment to its alcohol code to allow for the sale of mimosas and bloody marys at local restaurants at 11 a.m. rather than 12:30 p.m. beginning Nov. 18. The “brunch bill” approved by the legislature this year allowed cities to vote if they wanted to allow restaurants to sell alcohol 90 minutes earlier. Eighty percent of Brookhaven voters approved the referendum. The council amended its agenda at the Tuesday meeting to approve the alcohol code amendment after learning the DeKalb Board of Elections certified the midterm election results earlier in the day.

In the same amendment, the council also reiterated its Oct. 23 vote to extend alcohol sales from midnight until 2 a.m. on Sunday nights, or early Monday morning.

Brookhaven City Attorney Chris Balch.

City Attorney Chris Balch, who advised against the council approving the venues to sell until 2 a.m. on Sundays, argued the specific language in Senate Bill 17, dubbed the “brunch bill,” also expressly states Sunday alcohol sales end at “12 midnight.”

The legal sale of alcohol beginning at 11 a.m. on Sundays is not in question, Balch said.

Balch explained the Georgia alcohol code is divided into some 20 different subsections. Each subsection has its own set of criteria that lay out different rules and hours for different cities and counties based on subjects like populations and even for the number of seats in coliseums.

“This is the worst drafted statute in all of Georgia code,” Balch said of the state’s alcohol law.

Under the Georgia alcohol ordinance before the “brunch bill” was approved last week, Brookhaven appeared to be included in subsection “L,” Balch said.

Subsection “L” states that counties with over a 160,000 population may authorize Sunday sales at restaurants from “12:30 p.m. until 12 midnight.”

The “brunch bill” added a new “J” subsection to the Georgia alcohol code, Balch said, which states that municipalities that approved the referendum can now begin selling alcohol from “11 a.m. until 12 midnight.”

He said he believes the city’s decision to extend Sunday hours to 2 a.m. violates state law because there is nothing explained in the state law about what happens after midnight. That, to him, indicates sales are meant to stop at midnight and state law trumps local ordinances, he said.

The city has allowed alcohol sales after midnight on Sundays until this year.

Balch said he was attempting to reach someone in the Attorney General’s office to give an official ruling on Sunday sales to provide the council. He added he is asking state Rep. Scott Holcomb, who won reelection Nov. 7 and whose district includes a portion of Brookhaven, to also ask for a legislative opinion on Sunday sales.

Mayor John Ernst and Councilmembers John Park, Joe Gebbia and Bates Mattison agreed the city could approve the ordinance in order to allow Sunday sales to begin at 11 a.m. on Sunday, then await an official ruling from the Attorney General to determine if the 2 a.m. Sunday sales are illegal.

Councilmember Linley Jones cast the lone “no” vote against the ordinance. She said she did so because Balch said he believed it violated state law.

After the meeting, Ernst said the state alcohol law is “extremely confusing and not clear.” He said he is hopeful state legislators will work with municipal elected officials in the next session to amend the law to address the city’s confusion over Sunday alcohol sales past midnight. .

No other cities have apparently raised the issue of Sunday alcohol sales after midnight.

Earlier last call approved, then rescinded

Two weeks ago, the City Council voted to approve extending Sunday night alcohol hours from midnight to 2:30 a.m., with last call at 2 a.m.  Balch also advised the council against doing so at this meeting, making the same arguments that state law appears to prohibit Sunday sales after midnight.

The vote walks back the city’s decision earlier this year as part of an overhaul of its alcohol code to roll back hours from 3 a.m. to 2 a.m. on weekdays and to prohibit alcohol sales on Sundays at venues classified as “entertainment venues.”

Medusa Restaurant & Lounge on Buford Highway is one of three venues suing the city over its alcohol ordinance. (File)

Entertainment venues were deemed businesses with a DJ, dance floor or stage and required to pay a new $100,000 alcohol license fee, significantly steeper than previous fees in the $5,000 range. Nearly all venues that received this classification are located on Buford Highway. City officials said the new revenue from the entertainment venues were needed to subsidize a police coverage of Buford Highway with officers responding to late-night crimes, like car break-ins, DUIs, fights and sometimes shootings.

The roll back of hours from 3 a.m. to 2 a.m. occurred in April and affected all nightlife venues in the city except the Pink Pony strip club. Several venues challenged the new alcohol code to the city’s Alcohol Board, forcing the city to allow venues remain open until midnight on Sundays.

The Pink Pony, located on Corporate Boulevard off Buford Highway, was excluded from the new alcohol code hours due to its 2014 “exit agreement”, city officials said at the time. The agreement ended a spate of lawsuits between the Pink Pony and the city and allowed the strip club to remain open until Dec. 31, 2020, with several conditions including annual payments of $225,000 to help pay for police coverage.

Josephine’s, Medusa Restaurant & Lounge and XS Restaurant & Lounge, all located in Northeast Plaza on Buford Highway, sued the city in federal court over the new alcohol ordinance. Their attorney, Cary Wiggins, alleges the city discriminated against the black-owned businesses, in part, by forcing them to close earlier but allowing the white-owned Pink Pony to remain open until 4 a.m. seven days a week.

A federal judge in July allowed the lawsuit against the city to move forward. In his ruling he questioned the “selective enforcement” of allowing the Pink Pony to stay open later than other venues in the city.

Based on the judge’s ruling, the city decided Aug. 1 to begin enforcing the 2 a.m. last call at the Pink Pony on weekdays and a midnight closing on Sundays so it would be treated the same as other nightlife venues. The city also dropped the “entertainment venue” category and eliminated the $100,000 alcohol license fee.

The city denied allegations of discrimination against Josephine’s Medusa and XS Ultra Lounge in its October response to the federal lawsuit, according to court documents.

Pink Pony pleads for longer hours

Since August, the Pink Pony’s attorney, Aubrey Villines, has appeared several times at City Council meetings urging members during public comment to extend nightlife hours, including on Sundays, until after a ruling on the federal lawsuit.

Pink Pony executive Dennis Williams.

Dennis Williams, he CFO of Trop Inc., the company that owns the Pink Pony, urged the council at its Aug. 28 meeting to extend hours from 2 a.m. to 3 a.m., saying his business was “taking a beating” due to the shorter hours.

Trop Inc. filed chapter 11 bankruptcy on Sept. 19. Williams said the cut back in hours was seriously hurting the Pink Pony’s business, including pay for employees. The business is also being sued by many former dancers over wage and hour complaints, he said.

At the Oct. 23 meeting, Villines argued against Balch’s interpretation of the state law prohibiting alcohol sales after midnight on Sunday to council members during public comment.

He said Georgia law recognizes that after midnight on Sunday is Monday and the law is silent on Monday sales beginning at 12:01 a.m.

Dyana Bagby

Dyana Bagby is a staff writer for Reporter Newspapers and Atlanta Intown.