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Trop, Inc. v. City of Brookhaven

Supreme Court of Georgia

October 6, 2014

TROP, INC. et al.
v.
CITY OF BROOKHAVEN et al

Reconsideration denied November 3, 2014.

Page 399

Business code; constitutional question. DeKalb Superior Court. Before Judge Johnson.

Begner & Begner, Alan I. Begner, Cory G. Begner, Boris Y. Milter, Linda I. Dunlavy, Magarahan, Villines & Honis, Aubrey T. Villines, Jr., for appellants.

Scott D. Bergthold, Bryan A. Dykes, for appellees.

MELTON, Justice. All the Justices concur.

OPINION

Page 400

Melton, Justice.

Trop, Inc. and the JEG Family Trust have operated the Pink Pony entertainment club as a restaurant with alcohol consumption and adult nude dancing under DeKalb County licenses since November 1990. In June 2001, after taking part in litigation against DeKalb County, Pink Pony entered into a Settlement and Release Agreement with DeKalb County. Pursuant to this settlement, Pink Pony dismissed pending damages actions against DeKalb County in exchange for the right to continue its operations, as it had always done, for a term of eight years. In addition, Pink Pony agreed to pay an increased, graduated licensing fee. In May 2007, Pink Pony entered into the First Amended and Extended Settlement and Release Agreement, which extended the original settlement agreement for an additional fifteen years.

Approximately five years later, well before the termination of the DeKalb settlement agreement, the City of Brookhaven was incorporated on December 17, 2012, and, as a result, Pink Pony's location became part of the new municipality. At that time, DeKalb County ordinances, including those on alcohol and adult businesses, continued to apply in Brookhaven. Later, however, Brookhaven began a consideration of sexually-oriented businesses, and, on January 15, 2013, it approved its own sexually-oriented business Code. The [296 Ga. 86] sexually-oriented business Code's enactment was " [b]ased on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the City Council," including judicial decisions, studies, reports, and affidavits. Of particular importance to Pink Pony, the sexually-oriented business ordinance, in conjunction with Brookhaven's Alcohol Code,[1] prohibits the sale of alcohol in sexually-oriented businesses and allows only semi-nudity (g-strings and pasties), not full nudity.[2]

In May 2013, Pink Pony filed suit in DeKalb County Superior Court, claiming that Brookhaven's newly-enacted sexually-oriented business Code was unconstitutional, and that Pink Pony was exempt from it based on Pink Pony's settlement agreement with DeKalb County. Brookhaven answered and attached certified copies of public record documents: the sexually-oriented business Code, an amendment to the sexually-oriented business Code, and legislative record materials, including studies and reports regarding the negative effects of nude dancing establishments. With the Answer, Brookhaven also filed a Motion to Dismiss and/or for Judgment on the Pleadings. Pink Pony responded to the motion, and it filed an amendment to its complaint, incorporating exhibits into the original complaint. Pink Pony's response brief also cited to those exhibits, which included versions of the sexually-oriented business Code and amendment, the Alcohol Code and amendment, the Zoning Code, the City's charter, and DeKalb County's enabling legislation.

Page 401

After considering everything that was filed,[3] the trial court granted Brookhaven's motion for judgment on the pleadings, finding that Pink Pony's claims regarding the constitutionality of the sexually-oriented business Code failed as a matter of ...


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