DeKalb: Judge rules in favor of Brookhaven nightclubs

The front of Josephine Lounge in the Northeast Plaza in Brookhaven, Georgia, on Monday, April 23, 2018. (REANN HUBER/REANN.HUBER@AJC.COM)

The front of Josephine Lounge in the Northeast Plaza in Brookhaven, Georgia, on Monday, April 23, 2018. (REANN HUBER/REANN.HUBER@AJC.COM)

Brookhaven's new law requiring nightclubs to pay $100,000 to serve alcohol only six days a week is likely unconstitutional, a federal judge ruled.

U.S. District Judge Thomas W. Thrash Jr. said the city’s decision to require three businesses — Josephine’s, Medusa Restaurant and Lounge, and XS Restaurant and Lounge — to abide by different rules because they meet the definition of an “entertainment venue” appears to conflict with equal protection provisions in federal law.

VIDEO: Previous Brookhaven coverage

Brookhaven overhauled its alcohol ordinance last fall.

Under Brookhaven's new policy, if a venue has a DJ, a stage or a dance floor it must pay a $100,000 license to sell alcohol and no liquor sales are allowed on Sunday.

But the city is allowing the Pink Pony strip club to operate under different rules, Thrash said in his ruling. The Pink Pony serves alcohol until 4 a.m. seven days a week while paying the lower permitting fee.

“There is no rational reason for this selective enforcement,” he wrote. “The distinction between ‘restaurants’ and ‘entertainment venues’ based upon whether live music is performed or music produced by deejays from prerecorded music appears to be totally arbitrary.”

A spokesman for Brookhaven said the city is reviewing Thrash’s order and evaluating its options.

The judge’s ruling prohibits the city from requiring nightspots to pay the higher permitting fee and from restricting Sunday alcohol sales, which the three plaintiffs said was targeted at their busiest nights. Brookhaven had voluntarily decided not to enforce its new policy while the lawsuit was pending, but the venues argued that without an injunction there were no guarantees.

Thrash’s ruling also allowed the lawsuit to move forward, and the plaintiffs will argue Brookhaven’s law violates the First Amendment and targeted nightspots with black patrons.

Attorney Cary Wiggins, who represents the plaintiffs, said the nightspots are now waiting to see how the city responds.

“It seems clear that the venues should be afforded the same treatment as Pink Pony, and so they have their eyes on how the city is going to handle Pink Pony,” he said.

XS, Medusa and Josephine were registered as restaurants under Brookhaven law and allowed to serve alcohol seven days a week after paying a $4,900 license fee. They were among the first to be designated as "entertainment venues" under the law implemented this year. Since then, several other nightspots received similar orders.

Brookhaven's attorneys argued that Pink Pony is operating under a separate agreement with the city that allowed it to remain in operation as a strip club until 2020. That deal was struck in 2014 after Pink Pony filed suit to prevent the city from closing it down.

It allowed the strip club to pour alcohol later than other nightspots in exchange for paying a $225,000 annual fee for six years.

Thrash said that deal still requires the Pink Pony to adhere to Brookhaven laws, meaning it should have also been labeled an entertainment venue and held to the same new rules as the plaintiffs.