To the editor:

In the June 14-27 issue, Reporter Newspapers published a guest column by Brookhaven Mayor J. Max Davis about the city’s anti-adult business ordinance. This is a response to several of the statements in that column.

Mayor Davis said he did not expect that the city’s anti-adult business ordinance would be an issue. But the mayor knew that the city’s mean-spirited law, when applied to destroy the Pink Pony, would trigger the lawsuit that has now been filed.

There is much in the mayor’s op/ed piece with which to disagree, but this response is directed at the notion that Brookhaven’s ordinances can be applied to Pink Pony because they mirror ordinances adopted by other governments around the metro region, some having been upheld by a federal court. The mayor’s confidence is misplaced.

In the mid- to late-1990s, DeKalb County was being sued in various cases by the nine adult clubs in the county because of new anti-adult business laws. The county and the clubs came to a settlement that remains in effect today. The agreement allowed the clubs to continue to operate as “grandfathered” uses, despite the new ordinance. The clubs got to stay in business and agreed to pay a rather large annual fee to DeKalb County.

Result? The county was saved many years of litigation, as well as the hundreds of thousands of dollars such litigation would cost. Instead, the clubs have paid millions of dollars into county coffers. Several of the DeKalb County adult clubs have gone out of business, and those remaining have not been legally troublesome. Furthermore, DeKalb County’s present adult business regulations have not been challenged, nor upheld, so any outcome is mere speculation.

When the jurisdiction where Pink Pony is located changed from DeKalb County to Brookhaven, Pink Pony’s owners offered to discuss a similar agreement with the city of Brookhaven. Instead, the city has chosen to engage in a legal battle that is likely to continue for years and be exceedingly expensive for the new city.

The city of Sandy Springs, having incorporated in December 2005, has been in court defending its adult business ordinance since January 2006.

While Sandy Springs wages battle in both state and federal courts, defending its efforts to close its adult businesses, the clubs continue to operate just as they did when governed by Fulton County.

Brookhaven’s out-of-state lawyer has advised city officials that if the Pink Pony was “grandfathered” and allowed to continue operating, then “future businesses would naturally expect and likely be entitled to a similar deal.” This is simply false.

Non-conforming uses are “grandfathered” by cities and counties all the time. It is what DeKalb County did with its adult clubs, and there was never an issue about new ones attempting to open. The whole point of “grandfathering” existing uses is to allow businesses already in operation to continue, while foreclosing the opportunity for additional similar businesses to open. The Brookhaven City Council was told that allowing Pink Pony to continue operating as it always has, while refusing to allow other similar businesses to open, could create a constitutional equal protection issue. There is no basis whatsoever for such a claim.

The mayor has been advised to worry that other adult entertainment establishments might demand the right to ignore Brookhaven’s ordinance and open because Pink Pony continued to operate.

How ironic. The only way for new establishments to operate is to successfully challenge the ordinances already in place. If Pink Pony is successful in its litigation, new establishments who would be prohibited by the ordinances could open if the law is stricken.

The Brookhaven anti-adult business ordinance does not “mirror” ordinances in other local jurisdictions. More than one ordinance is being challenged. Each regulatory scheme is different; the facts differ in every jurisdiction.

The Doraville ordinances are being challenged in DeKalb Superior Court and have not been upheld. Johns Creek’s adult regulations, as well as those in Fulton County, were challenged in federal court, rather than state court, where Pink Pony has sued Brookhaven. The ordinance there was tested by an adult store that had never been properly licensed prior to the city’s incorporation, unlike Pink Pony, which has been properly licensed since 1991.

Also, in Fulton County, the county presented evidence of bad behavior and bad crime effects from the clubs on Fulton Industrial Boulevard, unlike Pink Pony, which has always been an exemplary citizen of its community.

It is critical to understand that the Georgia Constitution offers greater protection to free expression than the U.S. Constitution. This was demonstrated when the city of Warner Robins passed an ordinance prohibiting 18- to 21-year-olds from performing in adult clubs. The prohibition has been upheld in the federal courts as constitutional. When the city of Atlanta adopted an ordinance with the identical language that had been upheld in the Warner Robins case, the Georgia Supreme Court found it invalid under Georgia law.

Indeed, it is risky business to rely on federal court opinions in regard to local Georgia ordinances.

Alan Begner and Cory Begner, Attorneys for the Pink Pony