MaddoxNix

October 27, 2014 

​THE CITY OF BROOKHAVEN WINS GEORGIA SUPREME COURT BATTLE AGAINST PINK PONY

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     Shortly after the City of Brookhaven was incorporated on December 17, 2012, city council members enacted the "Sexually Oriented Business" ordinances (SOB codes) giving the appearance that the City intended to criple or even destroy sexually oriented businesses by denying such businesses the right to continue to sell alcohol.  

     

     The owners of the Pink Pony, an adult entertainment club operating under Dekalb County licenses since 1990, decided to judicially challenge the new SOB codes in relation with the City's Alcohol Code.  The operation of the club was originally governed by Dekalb County and in similar litigation with Dekalb County the case resulted in a settlement agreement, whereby adult entertainment clubs could operate business as usual for an annual license fee starting at $100,000, which increased for each subsequent year of operation.  

 

     In May, 2013 owners of the Pink Pony filed suit against the city claiming the SOB codes were unconstitutional and that the Pink Pony was exempt from the SOB codes due to the prior licensing agreement with Dekalb County. However, the Georgia Supreme Court did not agree with either argument. The Court upheld the SOB codes as being constitutional and found that the City of Brookhaven was not bound by the prior agreement with Dekalb County.  

 

     As to the constitutional argument, the Court applied the content neutral test referred to as the "Paramount Picture" test. The test posed three questions for the Court's consideration:

 

         1)  Did the SOB codes further an important governmental interest?            

           

            In this case, the Court held that the ordinances in question did further an   important governmental interest because they were enacted to: a) preserve the quality of urban life, b) reduce criminal activity and c) prevent the deterioration of neighborhoods.

 

     2) Is the important governmental interest furthered by the SOB codes unrelated to suppressing freedom of speech?          

 

         The Court held the goals of the SOB codes were unrelated to suppressing speech.

 

         3)  Are the SOB codes deemed incidental restrictions of speech not greater than what is essentially required to further the important governmental interest?        

          The Court held any incidental speech restrictions caused by the SOB codes are not essentially greater than what is necessary to further the three important government interests. The Court goes on to add that the construction of the SOB codes are sufficiently narrowly tailored since they are "limited to the modes of expression implicated in the production of negative secondary effects..."  Trop, Inc. v. City of Brookhaven, WL 4958232 (2014).

 

      Additionally, the Court dismissed the Pink Pony's challenge to the City's Alcohol Code for lack of judicial "standing."  The Court upheld the trial court's reasoning that since the Pink Pony had never even applied for an alcohol license with the City of Brookhaven much less been denied, they had no right to challenge Brookhaven's Alcohol Code.

 

    Almost immediately following the opinion from the Georgia Supreme Court, the City of Brookhaven sought equitable relief to end the Pink Pony's ability to operate in violation of the SOB codes and Alcohol codes. On November 5, 2014, the City struck a deal with the Pink Pony to pay the City's mounting legal fees and an annual fee of $225,000.00 in exchange for giving the club more time to obey the SOB codes.