TROP, INC. Et Al. v. CITY OF BROOKHAVEN Et Al.
296 Ga. 85
| Ga. | 2014Background
- Pink Pony (Trop, Inc. and JEG Family Trust) operated an alcohol-serving, nude-dancing club under DeKalb County licenses and a Settlement & Release Agreement (originally 8 years from 2001, extended in 2007 for 15 more years).
- The City of Brookhaven incorporated in December 2012; DeKalb ordinances initially continued to apply, but Brookhaven later adopted its own sexually-oriented business Code (Jan. 15, 2013) and Alcohol Code amendments.
- Brookhaven's ordinance, relying on evidence of adverse secondary effects, prohibits sale of alcohol in sexually-oriented businesses and limits entertainers to semi-nudity (g-strings and pasties).
- Pink Pony sued in May 2013 in DeKalb County Superior Court, contending the Brookhaven ordinance was unconstitutional and that Pink Pony was exempt due to its DeKalb settlement agreement.
- The trial court granted Brookhaven’s motion for judgment on the pleadings after considering exhibits attached to the pleadings; it held the ordinance content-neutral and constitutional under the Paramount Pictures test, and that the DeKalb settlement did not bind Brookhaven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brookhaven's sexually-oriented business ordinance violates free-speech (First Amendment) as an improper content-based restriction | Ordinance unlawfully restricts protected expressive conduct (nude dance) and is not narrowly tailored | Ordinance is content-neutral regulation addressing secondary effects (crime, neighborhood deterioration) and is narrowly tailored | Upheld: ordinance is content-neutral and satisfies Paramount Pictures three-prong test |
| Whether Pink Pony's DeKalb Settlement creates a vested right exempting it from Brookhaven’s ordinance | Settlement conferred a vested right to operate as before that binds successor municipality | A municipal council cannot bind successors; OCGA §36-30-3 prohibits such preclusion of future legislation | Rejected: settlement does not bind the City of Brookhaven; no vested right preventing ordinance enforcement |
| Whether trial court improperly converted motion for judgment on the pleadings into summary judgment by considering exhibits | Exhibits considered were outside pleadings and required summary judgment treatment | Exhibits were attached to pleadings (or cited by plaintiff) and thus part of the pleadings under OCGA §9-11-10(c) | Upheld: consideration of those exhibits did not convert motion to summary judgment |
| Whether Brookhaven’s motion for judgment on the pleadings was premature under OCGA §9-11-12(c) | Motion was filed before pleadings were closed, so premature | Argument raised for first time on appeal; trial court ruling stands | Waived on appeal; argument not considered |
Key Cases Cited
- Paramount Pictures Corp. v. Busbee, 250 Ga. 252 (1982) (establishes Georgia three-part test for content-neutral regulation of sexually-oriented expression)
- Goldrush II v. City of Marietta, 267 Ga. 683 (1997) (applies Paramount/secondary-effects analysis; supports content-neutral finding)
- City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) (upholds zoning regulation addressing secondary effects as legitimate municipal interest)
- Discotheque v. City Council of Augusta, 264 Ga. 623 (1994) (recognizes reduction of crime and neighborhood deterioration as important government interests)
- Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88 (2010) (standards for motion on the pleadings)
- Johnson v. RLI Ins. Co., 288 Ga. 309 (2011) (when extraneous matters convert dismissal to summary judgment)
- United States v. O'Brien, 391 U.S. 367 (1968) (speech regulation framework relied on in content-neutral analysis)
- McCullen v. Coakley, 573 U.S. 464 (2014) (distinguishes buffer-zone narrow-tailoring analysis; not controlling here)