Trop, Inc. Et Al. v. City of Brookhaven Et Al., 764 S.E.2d 398 (Ga. 2014). · Go Syfert
Trop, Inc. Et Al. v. City of Brookhaven Et Al., 764 S.E.2d 398 (Ga. 2014). Cases Citing This Book View Copy Cite
155 citation events (155 in the last 25 years) across 4 distinct courts.
Strongest positive: UCS DIALS MILL ROAD, LLC v. DEPARTMENT OF TRANSPORTATION (gactapp, 2026-02-27)
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discussed Cited as authority (quoted) UCS DIALS MILL ROAD, LLC v. DEPARTMENT OF TRANSPORTATION (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2026 · quote attribution · 1 verbatim quote · confidence low
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
discussed Cited as authority (quoted) Meade, LLC v. Dekalb Realty Holding, LLC (2×) also: Cited "see"
Ga. Ct. App. · 2025 · signal: see · quote attribution · 1 verbatim quote · confidence high
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
discussed Cited as authority (quoted) Tyrese Gibson v. Samantha Gibson (2×) also: Cited "see"
Ga. Ct. App. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
arguments raised for the first time on appeal are deemed to be waived
examined Cited as authority (quoted) LUIS MAYORGA v. JIM BENTON D/B/A VITAL RECORD SOLUTIONS (4×) also: Cited as authority (rule)
Ga. Ct. App. · 2022 · quote attribution · 2 verbatim quotes · confidence low
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non- party suggests that those facts dictate.
discussed Cited as authority (quoted) GREGORY ALLEN HISE v. THOMAS C. BORDEAUX, JR. (2×) also: Cited "see"
Ga. Ct. App. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
discussed Cited as authority (quoted) Mayah Mitchell v. Christopher Capehart (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2020 · signal: see also · quote attribution · 1 verbatim quote · confidence low
consideration of ... exhibits to the pleadings did not convert the motion to dismiss into a motion for summary judgment.
examined Cited as authority (quoted) MOATS Et Al. v. MENDEZ. (4×) also: Cited "see"
Ga. Ct. App. · 2019 · signal: see · quote attribution · 2 verbatim quotes · confidence high
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
examined Cited as authority (quoted) Walker v. Oglethorpe Power Corp. (3×) also: Cited "see"
Ga. Ct. App. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
examined Cited as authority (quoted) Michael Shapiro v. Oglethorpe Power Corporation (3×) also: Cited "see"
Ga. Ct. App. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
examined Cited as authority (quoted) HUMPHREY v. JP MORGAN CHASE BANK, N.A. Et Al. (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence low
f matters outside the pleadings were presented to the trial court, which then considered these matters as it resolved the case, then a reviewing court is required to treat the resulting trial court's order as a ruling on a motion for summary judgment.
examined Cited as authority (quoted) Oasis Goodtime Emporium I, Inc., D/B/A Oasis v. City of Doraville (9×) also: Cited "see", Cited "see, e.g."
Ga. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
examined Cited as authority (quoted) Oasis Goodtime Emporium I, Inc., D/B/A Oasis v. City of Doraville (9×) also: Cited "see", Cited "see, e.g."
Ga. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
while a trial court is required to consider a non-moving party's factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate.
discussed Cited as authority (rule) WBY, Inc. v. City of Chamblee, Georgia (2×)
11th Cir. · 2025 · confidence medium
In Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 88 (2014), the Georgia Supreme Court held, in a similar case brought by an adult estab- lishment against a newly incorporated city, that the aggrieved party could not use an agreement with DeKalb County to bind the successively incorporated city.
examined Cited as authority (rule) Jones v. City of Atlanta (6×) also: Cited "see"
Ga. · 2024 · confidence medium
“A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” Trop, Inc., 296 Ga. at 87 (1) (citation and punctuation omitted). “[I]n reviewing such motions, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” Hamon v. Connell, 315 Ga. 760, 760 (1) (883 SE2d 785) (2023) (citation and punctuation omitted).
examined Cited as authority (rule) GEORGIA ASSOCIATION OF CLUB EXECUTIVES, INC. v. STATE OF GEORGIA (Two Cases) (10×)
Ga. · 2024 · confidence medium
See Maxim Cabaret, Inc. v. City of Sandy Springs, 304 Ga. 187, 193-194 (III) (816 SE2d 31) (2018); Oasis Goodtime Emporium I, Inc., v. City of Doraville, 297 Ga. 513, 525 (3) (c) (1) (773 SE2d 728) (2015); Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 88 (1) (764 SE2d 398) (2014); Chambers v. Peach County, 268 Ga. 672, 674 (2) (492 SE2d 191) (1997); Goldrush II v. City of Marietta, 267 Ga. 683, 692-693 (5) (482 SE2d 347) (1997); 2 Gravely v. Bacon, 263 Ga. 203, 207 (2) (429 SE2d 663) (1993).
examined Cited as authority (rule) GEORGIA ASSOCIATION OF CLUB EXECUTIVES, INC. v. STATE OF GEORGIA (Two Cases) (5×)
Ga. · 2024 · confidence medium
See Maxim Cabaret, Inc. v. City of Sandy Springs, 304 Ga. 187 , 193-194 (III) ( 816 SE2d 31 ) (2018); Oasis Goodtime Emporium I, Inc. v. City of Doraville, 297 Ga. 513, 525 (3) (c) (1) ( 773 SE2d 728 ) (2015); Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 88 (1) ( 764 SE2d 398 ) (2014); Chambers v. Peach County, 268 Ga. 672, 674 (2) ( 492 SE2d 191 ) (1997); Goldrush II v. City of Marietta, 267 Ga. 683, 692-693 (5) ( 482 SE2d 347 ) (1997); Gravely v. Bacon, 263 Ga. 203, 207 (2) ( 429 SE2d 663 ) (1993).
discussed Cited as authority (rule) Gonzalez v. Miller (2×)
Ga. · 2024 · confidence medium
“For the purposes of a motion for 2 judgment on the pleadings, all well-[pled] material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Citation and punctuation omitted.) Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 86-87 (1) (764 SE2d 398) (2014).
discussed Cited as authority (rule) CONTOUR SIERRA, LLC v. COLETTE WILLIAMS
Ga. Ct. App. · 2023 · confidence medium
Accordingly, because “arguments raised for the first time on appeal are deemed to be waived,” Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 90 (3) ( 764 SE2d 398 ) (2014), we need not address this issue on appeal. 18 And the factual allegations in the complaint, admitted by Contour, show a violation of the applicable statutes.
discussed Cited as authority (rule) WBY, Inc. v. City of Chamblee, Georgia
N.D. Ga. · 2021 · confidence medium
To be sure, the Georgia Supreme Court—in a substantially similar action brought by another strip club (the Pink Pony) against a newly-incorporated city in DeKalb County (Brookhaven)—expressly found that the DeKalb Agreement “cannot be used to bind the successively incorporated City of Brookhaven.” Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 88 (2014).
discussed Cited as authority (rule) Premier Eye Care Associates, P.C. v. Mag Mutual Insurance Company
Ga. Ct. App. · 2020 · confidence medium
Rickman and Brown, JJ., concur. 25 Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 ( 764 SE2d 398 ) (2014); see Love v. Morehouse Coll., Inc., 287 Ga. App. 743, 743-44 ( 652 SE2d 624 ) (2007) (explaining that when reviewing the trial court’s dismissal of a complaint, “we view all of the plaintiff’s well-pleaded material allegations as true, and view all denials by the defendant as false, [but] we are under no obligation to adopt a party’s legal conclusions based on these facts”). 16
discussed Cited as authority (rule) Premier Eye Care Associates, P.C. v. Mag Mutual Insurance Company
Ga. Ct. App. · 2020 · confidence medium
Rickman and Brown, JJ., concur. 25 Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 ( 764 SE2d 398 ) (2014); see Love v. Morehouse Coll., Inc., 287 Ga. App. 743, 743-44 ( 652 SE2d 624 ) (2007) (explaining that when reviewing the trial court’s dismissal of a complaint, “we view all of the plaintiff’s well-pleaded material allegations as true, and view all denials by the defendant as false, [but] we are under no obligation to adopt a party’s legal conclusions based on these facts”). 17
cited Cited as authority (rule) Fortress Investment Group, LLC v. Joel Holsinger
Ga. Ct. App. · 2020 · confidence medium
Because Appellants make this argument for the first time on appeal, “the contention must be deemed to have been waived.” Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 90 (3) ( 764 SE2d 398 ) (2014).
discussed Cited as authority (rule) WILLIAMS v. DEKALB COUNTY
Ga. · 2020 · signal: cf. · confidence medium
Cf. Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 ( 764 SE2d 398 ) (2014) (The trial court was authorized to consider ordinances attached as exhibits to pleadings on a motion for judgment on the pleadings, and in doing so, did not convert the motion to dismiss into a motion for summary judgment.).
discussed Cited as authority (rule) MAXIM CABARET, INC. v. CITY OF SANDY SPRINGS (2×)
Ga. · 2018 · confidence medium
See, e.g., Pap’s A.M., 529 U.S. at 290-297 ; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 ( 106 SCt 925 , 89 LE2d 29) (1986); Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 ( 764 SE2d 398 ) (2014).
cited Cited as authority (rule) Muriel Montia v. First-Citizens Bank & Trust Company
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 9-11-10 (c); Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) ( 764 SE2d 398 ) (2014); Shelnutt v. Mayor and Aldermen of the City of Savannah, 333 Ga. App. 446 ( 776 SE2d 650 ) (2015).
discussed Cited as authority (rule) The Cline Drive Land Trust v. Wells Fargo Bank, N.A.
Ga. Ct. App. · 2016 · confidence medium
“For the purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Citation and punctuation omitted.) Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 86-87 (1) ( 764 SE2d 398 ) (2014).
discussed Cited as authority (rule) Shoenthal v. Shoenthal
Ga. Ct. App. · 2016 · confidence medium
“A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) ( 764 SE2d 398 ) (2014) (citation and punctuation omitted).
discussed Cited as authority (rule) Rachel R. Shoenthal v. Fran W. Shoenthal
Ga. Ct. App. · 2016 · confidence medium
“A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 ( 764 SE2d 398 ) (2014) (citation and punctuation omitted).
cited Cited as authority (rule) Bankston v. RES-GA Twelve, LLC
Ga. Ct. App. · 2015 · confidence medium
Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) ( 764 SE2d 398 ) (2014) (footnote omitted).
cited Cited as authority (rule) Denesia Bankston v. Res-Ga Twelve, LLC
Ga. Ct. App. · 2015 · confidence medium
For this reason, [Bankston’s] claims are untenable based on the standard of review alone. 3 Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) ( 764 SE2d 398 ) (2014) (footnote omitted).
cited Cited as authority (rule) Nkn Enterprises, LLC v. Branch Banking and Trust Company
Ga. Ct. App. · 2015 · confidence medium
Trop, 296 Ga. at 87 (1) (trial court “is not required to accept the legal conclusions the non-party suggests that [his factual allegations] dictate”).
cited Cited as authority (rule) Thomas v. Gregory
Ga. Ct. App. · 2015 · confidence medium
Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) ( 764 SE2d 398 ) (2014).
cited Cited as authority (rule) STAFFORD v. GARELECK Et Al.
Ga. Ct. App. · 2015 · confidence medium
Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) ( 764 SE2d 398 ) (2014); Islam v. Wells Fargo Bank, N.A., 327 Ga. App. 197 ( 757 SE2d 663 ) (2014).
discussed Cited "see" JERMAINE WALLACE v. CITY OF ATLANTA (2×)
Ga. Ct. App. · 2023 · signal: see · confidence high
See Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 90 (3) ( 764 SE2d 398 ) (2014); Pinnacle Benning LLC, 314 Ga. App. at 618 (2) (b); Hann v. Harpers Boutiques Intl., 284 Ga. 11 App. 531, 533 (1) ( 644 SE2d 337 ) (2007).
examined Cited "see" HAMON v. CONNELL (4×)
Ga. · 2023 · signal: see · confidence high
See Oasis Goodtime Emporium I, Inc. v. City of Doraville, 297 Ga. 513, 522 (3) (a) ( 773 SE2d 728 ) (2015) (“While a trial court . . . is required to consider a non- moving party’s factual allegations to be true, it is not required to accept the legal conclusions the non-[moving ]party suggests that those facts dictate.” (punctuation omitted) (citing Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) ( 764 SE2d 398 ) (2014)). 3 The trial court’s order states that Lisa Dickens was estranged from Hamon, as well as Dickens, but no such allegation appears in the complaint. 4 OCGA § 51-4…
examined Cited "see" Tom Brown v. E. Howard Carson, Jr. (4×) also: Cited "see, e.g."
Ga. Ct. App. · 2019 · signal: accord · confidence high
Bd. of Assessors , 288 Ga. 88 , 90, 701 S.E.2d 472 (2010) ; accord Trop, Inc. v. City of Brookhaven , 296 Ga. 85 , 86-87 (1), 764 S.E.2d 398 (2014) ; see Hewell , 292 Ga. App. at 511 (1), 664 S.E.2d 875 ("All well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false[.]" (punctuation omitted) ). 45 We pause to note that these appeals were transferred to us from the Supreme Court of Georgia because it determined that the issues on appeal did not implicate its constitutional-question jurisdiction, and because "there appeared to be no ot…
discussed Cited "see" Stardust, 3007 LLC v. City of Brookhaven, Georgia (2×)
11th Cir. · 2018 · signal: see · confidence high
See *1169 Trop, Inc. v. City of Brookhaven , 296 Ga. 85 , 764 S.E.2d 398 , 400-02 (2014) (concluding that the Code did not violate Pink Pony's right to free speech by "separating alcohol from adult entertainment" (internal quotation marks omitted)).
discussed Cited "see" Stardust, 3007 LLC v. City of Brookhaven, Georgia
11th Cir. · 2018 · signal: see · confidence high
See Trop, Inc. v. City of Brookhaven, 764 S.E.2d 398, 400-02 (Ga. 2014) (concluding that the Code did not violate Pink Pony’s right to free speech by “separating alcohol from adult entertainment” (internal quotation marks omitted)).
discussed Cited "see" Tyrones v. Tyrones (2×)
Ga. · 2016 · signal: see · confidence high
See Trop, Inc. v. City of Brookhaven, 296 Ga. 85 (3) ( 764 SE2d 398 ) (2014).
discussed Cited "see, e.g." POLO GOLF and COUNTRY HOMEOWNERS ASSOCIATION, INC. v. CUNARD (2×)
Ga. · 2019 · signal: see also · confidence low
See also Trop, Inc. v. City of Brookhaven, 296 Ga. 85 (1) ( 764 SE2d 398 ) (2014).
Retrieving the full opinion text from the archive…
Trop, Inc., D/B/A Pink Pony
v.
City of Brookhaven
S14A0931.
Supreme Court of Georgia.
Oct 6, 2014.
764 S.E.2d 398
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.
Cited by 45 opinions  |  Published
5 passages pin-cited by 11 cases
Pinpoint authority: #12,009 of 633,719
Citer courts: Court of Appeals of Georgia (11) · Supreme Court of Georgia (2)
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[*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.

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 law. This appeal followed. For the reasons set forth below, we affirm.

1. It is well-settled that,

“[f]or the purposes of [a] motion [for judgment on the pleadings], all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as[*87] false. [Cit.]” Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 44 (3) (482 SE2d 536) (1997). A motion for judgment on the pleadings should ‘Tie granted only if... the moving party is clearly entitled to judgment.” Gulf American Fire & Casualty Co. v. Harper, 117 Ga. App. 356 (1) (160 SE2d 663) (1968).

(Punctuation omitted.) Sherman v. Fulton County Board of Assessors, 288 Ga. 88, 90 (701 SE2d 472) (2010).

Pink Pony details a long list of ways in which it contends that the trial court failed to adhere to its “well-pled facts” in granting Brook-haven’s motion to dismiss. The great majority of items on this list, however, are not factual matters at all. [4] To the contrary, they are conclusions of law. While a trial court is required to consider a non-moving party’s factual allegations to be true, it is not required to accept the legal conclusions the non-party suggests that those facts dictate. For this reason, most of Pink Pony’s claims are untenable based on the standard of review alone.

Sifting through the rest of Pink Pony’s complaints, it becomes clear that its main contention is that the trial court erred in its determination that Brookhaven’s sexually-oriented business ordinance passed the constitutional standards relating to the curtailment of free speech set forth in Paramount Pictures Corp. v. Busbee, 250 Ga. 252 (297 SE2d 250) (1982). The trial court did not err.

The Paramount Pictures test applies to content-neutral legislation and poses three questions: “(1) Does the [legislation] further an important governmental interest? (2) Is that interest unrelated to the suppression of speech? and (3) Is the legislation an incidental restriction of speech no greater than essential to further the important governmental interest?” (Punctuation omitted.) Goldrush II v. City of Marietta, 267 Ga. 683, 692 (5) (482 SE2d 347) (1997). [5]

As an initial matter, Brookhaven’s sexually-oriented business ordinance is content-neutral “[i]n light of the city council’s predominate goal of combatting pernicious secondary effects [coupled with] the lack of sufficient evidence to establish an improper motive on the part of council members.” Id. at 692 (4). Furthermore, the sexually-oriented business ordinance passes all three prongs of the Paramount [*88] Pictures test. First, it furthers the important government interests of “attempting to preserve the quality of urban life,” (citation and punctuation omitted) City of Renton v. Playtime Theatres, 475 U. S. 41, 50 (106 SCt 925, 89 LE2d 29) (1986), and “reducing] criminal activity and preventing] the deterioration of neighborhoods.” Discotheque, Inc. v. City Council of Augusta, 264 Ga. 623, 624 (449 SE2d 608) (1994). These goals, in turn, are not related to any desire to suppress speech. “[Brookhaven’s] desire to preserve the quality of urban life and its attempt to reduce crime and prevent neighborhood deterioration by separating alcohol from adult entertainment are important government interests unrelated to the suppression of speech.” (Citation omitted.) Goldrush II, supra, 267 Ga. 692 (5). Finally, any incidental restriction of speech caused by the ordinance is no greater than essential to further these important governmental interests. The ordinance’s

application is sufficiently narrowly tailored because it is limited to the modes of expression implicated in the production of negative secondary effects — those establishments that provide alcohol and entertainment requiring an adult entertainment license — thereby exempting mainstream performance houses, museums, or theaters.

Id. Therefore, given the long history of sexually-oriented business ordinances, ample precedent, and the established record regarding the deleterious effects of alcohol coupled with nude dancing, the trial court did not err by finding that, as a matter of law, Brookhaven’s sexually-oriented business ordinance does not unconstitutionally infringe upon Pink Pony’s free speech rights. [6]

Pink Pony’s contention that Brookhaven should be bound by the prior agreement between Pink Pony and DeKalb County does not change this result. As found by the trial court, this prior agreement cannot be used to bind the successively incorporated City of Brookhaven. Cf. OCGA § 36-30-3 (a) (“One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of[*89] municipal government.”). This, of course, undermines Pink Pony’s erroneous arguments that it had some vested right to continue operation as a nude dancing club that serves alcohol.

2. Pink Pony also argues that the trial court erred by granting Brookhaven’s motion for judgment on the pleadings after considering exhibits attached to Brookhaven’s answer to the original action. Specifically, Pink Pony argues that these exhibits should be considered outside the pleadings, and, by considering the exhibits, the trial court converted the motion for judgment on the pleadings into a motion for summary judgment.

On an appeal of a trial court’s order that dismisses a cause of action for failure to state a claim upon which relief can be granted, “the reviewing court must determine whether either party has presented matters outside the pleading to the trial court, and if so whether the trial court excluded or considered such matters.” Therefore, if matters outside the pleadings were presented to the trial court, which then considered these matters as it resolved the case, then a reviewing court is required to treat the resulting trial court’s order as a ruling on a motion for summary judgment.

(Citations and punctuation omitted.) Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 SE2d 173) (2010).

In this case, however, the trial court considered the pleadings only. “A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” OCGA § 9-11-10 (c). The items considered by the trial court, namely 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, were attached to either Brookhaven’s answer to Pink Pony’s original complaint or Pink Pony’s own response to Brookhaven’s motion to dismiss. [7] Consideration of these exhibits to the pleadings did not convert the motion to dismiss into a motion for summary judgment. Id.

3. Finally, for the first time on appeal, Pink Pony argues that the trial court erred by prematurely granting Brookhaven’s motion to dismiss before the pleadings were closed. In doing so, Pink Pony relies on OCGA § 9-11-12 (c), which states that, “[a]fter the pleadings are[*90] closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Because Pink Pony raises the argument that Brookhaven’s motion was premature for the first time on appeal, the contention must be deemed to have been waived. See, e.g., Rogers v. State, 290 Ga. 401, 406 (3) (721 SE2d 864) (2012) (argumensts raised for the first time on appeal are deemed to be waived).

Decided October 6, 2014 Reconsideration denied November 3, 2014. 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.

4. Any remaining contentions raised by Pink Pony are without merit.

Judgment affirmed.

All the Justices concur.
1

The trial court properly found that, because Pink Pony had never applied for an alcohol license or been denied one, it had no standing to challenge the Alcohol Code for a hypothetical denial. See, e.g., Manlove v. Unified Govt. of Athens-Clarke County, 285 Ga. 637 (680 SE2d 405) (2009).

2

Nudity is defined in Brookhaven’s sexually-oriented business Code as “the showing of a human male or female genitals, pubic area, vulva, or anus with less than a fully opaque covering of any part of the nipple or areola.”

3

The trial court explicitly stated that it considered exhibits attached to the pleadings filed by both parties.

4

As examples of this, Pink Pony maintains, among other things, that the trial court erred by refusing to accept its contention that (1) it detrimentally relied on the settlement agreement with DeKalb County, (2) the Brookhaven ordinance was unconstitutional, and (3) the trial court should have relied on cases cited by Pink Pony, not other ones.

5

In setting forth this test, this Court relied on United States v. O’Brien, 391 U. S. 367, 377 (88 SCt 1673, 20 LE2d 672) (1968).

6

Contrary to Pink Pony’s argument, McCullen v. Coakley, _ U. S. _ (134 SCt 2518, 189 LE2d 502) (2014), does not change this result. Coakley regards the use of “buffer zones” around abortion clinics. In that case, a buffer zone law established by Massachusetts was struck down as not being narrowly tailored, in part because the Supreme Court was able to point to laws in other jurisdictions which satisfied Massachusetts’s purpose in a less restrictive manner. This case presents the opposite situation. The trial court was able to look at precedent from other jurisdictions approving sexually-oriented business regulations almost identical to the one currently in question. See, e.g., Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 630 F3d 1346 (11th Cir. 2011).

7

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.