Greenville Bistro, LLC. v. Greenville County

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Greenville Bistro, LLC, a South Carolina Limited
Liability Company, d/b/a Bucks Racks & Ribs, and
Frontage Road Associates, Inc., a South Carolina
Corporation, Respondents,
v.
Greenville County, a Political Subdivision of the State of
South Carolina, and Will Lewis, in his Official Capacity
as Sheriff of Greenville County, Appellants.
Appellate Case Nos. 2017-001747 and 2018-001393
Appeal from Greenville County
Robin B. Stilwell, Circuit Court Judge
Perry H. Gravely, Circuit Court Judge
Opinion No. 28072
Heard November 17, 2020 – Filed December 8, 2021
REVERSED AND REMANDED
John R. Devlin Jr., of Devlin & Antley, P.A., of
Greenville, and Scott D. Bergthold, of Law Office of Scott
D. Bergthold, P.L.L.C., of Chattanooga, TN, for
Appellants.
Oscar W. Bannister and Luke A. Burke, both of Bannister,
Wyatt & Stalvey, LLC, of Greenville, and Luke Lirot, of
Luke Charles Lirot, P.A., of Clearwater, FL, for
Respondents.
JUSTICE JAMES: These two consolidated appeals filed by Greenville County
arise from a zoning dispute between the County and Greenville Bistro, LLC, d/b/a
Bucks Racks & Ribs. Greenville Bistro commenced this action against the County
to enjoin the County from enforcing an ordinance to deny Greenville Bistro's desired
method of operating Bucks Racks & Ribs, located at 805 Frontage Road in
Greenville County. Citing other ordinances, the County counterclaimed and moved
to enjoin Greenville Bistro from operating Bucks as a sexually oriented business.
Both appeals concern the legality of Greenville Bistro operating Bucks as a
restaurant with the added feature of scantily clad exotic dancers. The circuit court
(Judge Stilwell) granted Greenville Bistro's motion for a temporary injunction, and
the County appealed. While the County's appeal was pending, the circuit court
(Judge Gravely) denied the County's motion for temporary injunctive relief, ruling
that in light of the County's appeal it did not have jurisdiction to consider the
County's motion. We reverse both rulings, dissolve the injunction granted to
Greenville Bistro, and hold the County is entitled to injunctive relief. We remand to
the circuit court for proceedings consistent with this opinion.
I.
These appeals primarily revolve around two Greenville County Ordinances:
Ordinance No. 2673 and Ordinance No. 4869. Ordinance No. 2673 is no stranger to
litigation and has been the subject of two land use decisions of this Court, Harkins
v. Greenville County, 340 S.C. 606, 533 S.E.2d 886 (2000), and Greenville County
v. Kenwood Enterprises, Inc., 353 S.C. 157, 577 S.E.2d 428 (2003), overruled on
other grounds by Byrd v. City of Hartsville, 365 S.C. 650, 620 S.E.2d 76 (2005).
Kenwood involved 805 Frontage Road, the location of Bucks. Ordinance No. 4869
is new to the appellate scene. The ordinances referred to in this opinion are part of
the Record on Appeal.
The current litigation began on May 23, 2017, when Greenville Bistro sued
the County, seeking declaratory and injunctive relief against the County's attempts
to enforce its Sexually Oriented Business Code, which was established in 1995 by
Ordinance No. 2673 and amended in part in 2017 by Ordinance No. 4869. The
County counterclaimed for injunctive relief, asking the circuit court to require
Greenville Bistro to comply with Ordinance No. 2673 and other portions of the
Greenville County Zoning Ordinance (Zoning Ordinance). On June 16, 2017, the
circuit court held a hearing solely on Greenville Bistro's motion for injunctive relief,
and by order dated July 17, the circuit court temporarily enjoined the County from
enforcing the provisions of Ordinance No. 4869 as to Greenville Bistro at the subject
location. The County appealed the circuit court's order.
In March 2018, the circuit court held a hearing on the County's motion for
injunctive relief. The County argued that although it was temporarily enjoined from
enforcing Ordinance No. 4869, it was nevertheless entitled to temporary injunctive
relief because Greenville Bistro was operating a sexually oriented business in
violation of Ordinance No. 2673 and was operating a nightclub in violation of
another portion of the Zoning Ordinance. The circuit court received testimony and
heard argument, but without addressing the merits of the County's arguments, the
circuit court ruled it did not have jurisdiction to rule on the County's motion because
any grant of relief to the County would impact the County's pending appeal
regarding Ordinance No. 4869.
II.
The applicable ordinances define numerous terms. Most pertinent to our
resolution of these appeals are the terms "sexually oriented business," "adult
cabaret," and "specified sexual activities." Other defined terms have less importance
in light of our various holdings. These terms include "nudity," "semi-nude," and
"nightclub."
A. Ordinance No. 2673
Since it was enacted in 1995, Ordinance No. 2673 has regulated the location
of sexually oriented businesses in Greenville County. Under this ordinance, all
sexually oriented businesses must be located in an S-1 zoning district. Further, these
businesses are prohibited from operating within 1,500 feet of certain properties—
such as residences, churches, and child-care facilities. A "sexually oriented
business" includes an "adult cabaret," which is defined in Ordinance No. 2673 as "a
nightclub, bar, restaurant, or similar commercial establishment which regularly
features[,]" in pertinent part, "[l]ive performances which are characterized
by . . . 'specified sexual activities' . . . ." The term "specified sexual activities" is
defined in pertinent part in Ordinance No. 2673 as any of the following:
(a) The fondling or other erotic touching of human genitals, pubic
region, buttocks, anus, or female breasts;
(b) Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, or sodomy; [or]
(c) Masturbation, actual or simulated.
The preamble to Ordinance No. 2673 explains that before adopting the
ordinance, the County considered multiple studies throughout the country
highlighting the numerous negative effects sexually oriented businesses have on
nearby residents and property values. The stated purpose of the ordinance was to
address "the quality of life and property values of the residents of Greenville County,
and at the same time preserve the First Amendment rights of those who would wish
to express themselves through adult-oriented entertainment establishments . . . ."
Thereafter, in Harkins, several sexually oriented businesses challenged the
constitutionality of Ordinance No. 2673. We held the ordinance's strict permitting
requirements were unconstitutional, but we upheld the ordinance's regulation of the
location of sexually oriented businesses. 340 S.C. at 621, 533 S.E.2d at 894; id. at
614, 533 S.E.2d at 890 ("[S]exually oriented business regulations will be upheld if
they are designed to serve the substantial governmental interest of preventing
harmful secondary effects and they allow for reasonable avenues of
communication."). However, legal disputes continued. Because the parties relate
some of their arguments to prior rulings, and with the hope that protracted litigation
can be avoided in the future, we review those rulings.
B. Platinum Plus's Permanent Injunction and the 2002 Consent Order
Elephant, Inc., d/b/a Platinum Plus, Kenwood Enterprises, Inc., and Kenwood
Gaines (collectively, Platinum Plus) preceded Greenville Bistro as tenant of 805
Frontage Road. After Harkins upheld Ordinance No. 2673's location restrictions in
2000, the County sued several adult businesses, including Platinum Plus, seeking to
permanently enjoin them from operating sexually oriented businesses in prohibited
areas. The County was granted a permanent injunction prohibiting Platinum Plus
from operating a sexually oriented business at 805 Frontage Road, as the premises
were "within 1,500 feet of a church, the boundary of residential districts, the property
lines of lots devoted primarily to residential use, and a family oriented recreation
facility." Platinum Plus appealed, and three years after Harkins, we affirmed the
circuit court's issuance of the permanent injunction in Kenwood. We held, in part,
that Ordinance No. 2673 survived First Amendment scrutiny. 353 S.C. at 168-71,
577 S.E.2d at 433-35.
While the Kenwood litigation was pending, Platinum Plus filed an action for
declaratory relief against the County requesting a declaration of the meaning of
"nudity" and "semi-nude" as defined by Ordinance No. 2673. Because Ordinance
No. 2673 prohibits people from appearing in a "state of nudity" at the subject
property, Platinum Plus attempted to comply with the ordinance by presenting
entertainers it claimed were merely "semi-nude."
Platinum Plus and the County resolved the declaratory judgment action by
consent order (the 2002 Consent Order). Among other things, Platinum Plus agreed
that neither it nor its successors and assigns would operate a sexually oriented
business at the property or allow any person to engage in the above-defined
"specified sexual activities" while on the premises.
C. The State's Nuisance Action Against Platinum Plus
Platinum Plus continued operation at 805 Frontage Road. In 2015, the
Greenville County Solicitor, on behalf of the State, filed a nuisance action against
Elephant, Inc. and its principal, Gregory Kenwood Gaines, pursuant to South
Carolina Code section 15-43-10, et seq. Greenville County was not a party to this
litigation. Prior to trial, the parties entered into a consent order (the 2015 Consent
Order), in which Platinum Plus agreed the Solicitor had sufficient evidence for a
court to find Platinum Plus constituted a public nuisance. Platinum Plus agreed to
close its business for six months, reopen subject to extensive monitoring, and pay a
substantial fine. The 2015 Consent Order also expressly incorporated and reaffirmed
the terms and conditions of the 2002 Consent Order.
In 2016—only a few months after Platinum Plus reopened—the Solicitor filed
a verified petition seeking contempt findings against Platinum Plus for violations of
the 2015 Consent Order. This petition resulted in another order being entered on the
caption of the 2015 nuisance action. In that order (filed July 27, 2016), the circuit
court ruled the Solicitor presented sufficient evidence of violations of the 2015
Consent Order to justify a finding of criminal and/or civil contempt. The circuit
court imposed monetary sanctions, shuttered Platinum Plus's business operations for
an additional six months, and extended the mandatory monitoring requirements. The
defendants appealed, and the court of appeals affirmed. State v. Elephant, Inc.,
2019-UP-290 (S.C. Ct. App. filed Aug. 14, 2019).
D. Greenville Bistro Leases the Property
Platinum Plus abandoned the property shortly after being shut down for the
second time. On December 5, 2016, Frontage Road Associates—the owner of the
property—moved for the circuit court to release the property from all orders
pertaining to Platinum Plus because Frontage Road had entered into a new lease
agreement with Greenville Bistro. Frontage Road submitted an affidavit from Jason
C. Mohney, the principal of Greenville Bistro, who swore Platinum Plus and
Greenville Bistro were unconnected and "completely separate" businesses.
In early 2017, and again under the 2015 nuisance action caption, Frontage
Road moved pursuant to section 15-43-80 of the South Carolina Code to have the
property released from the 2002 Consent Order and the 2015 Consent Order.
Frontage Road argued Platinum Plus had abandoned the premises, thereby abating
any nuisance arising from its activities on the premises. Again, Greenville County
was not a party to the nuisance action. In its February 10, 2017 order releasing the
property from the restrictions, the circuit court noted, "Greenville Bistro, LLC is
seeking to commence operations of a similar business as Platinum Plus in the
location." The circuit court found there was no connection between Platinum Plus
and Greenville Bistro, and the circuit court cautioned, "[I]n the event that Greenville
Bistro, or any other adult entertainment venue, commences operating at the location,
full and complete compliance with all applicable laws, ordinances, etc. is expected."
That same day, Greenville Bistro filed a commercial zoning application with the
County to open a restaurant at the property.
E. The County Adopts Ordinance No. 4869
On February 21, 2017, the County adopted Ordinance No. 4869 to amend a
small portion of the Sexually Oriented Business Code. The amendment changed the
definition of "adult cabaret" to include businesses that regularly feature persons
appearing in a "state of semi-nudity." Ordinance No. 4869 also included a new
definition of "semi-nude."
(13) Semi-nude or a state of semi-nudity means the showing of the
female breast below a horizontal line across the top of the areola and
extending across the width of the breast at that point, or the showing of
the male or female buttocks. This definition shall include the lower
portion of the human female breast, but shall not include any portion of
the cleavage of the human female breasts exhibited by a bikini, dress,
blouse, shirt, leotard, or similar wearing apparel provided the areola is
not exposed in whole or in part.
As noted above, Ordinance No. 2673 classified adult cabarets as those
establishments regularly featuring, among other things, persons appearing in a "state
of nudity." Therefore, Ordinance No. 4869, by extending the classification of adult
cabarets to establishments featuring persons appearing in a "state of semi-nudity,"
placed a greater restriction upon Greenville Bistro's desired business model and the
business model Platinum Plus was informed it could legally employ under the 2002
Consent Order.
Importantly, however, the adoption of Ordinance No. 4869 did not disturb
other classifications of adult cabarets as set forth in Ordinance No. 2673.
Specifically, as we noted above in section II.A., and as we will discuss below in
section III.B., a prohibited "adult cabaret" includes an establishment that regularly
features live performances characterized by "specified sexual activities." Adult
cabarets are not permitted in the location where Bucks operates.
The day after Ordinance No. 4869 was enacted, the County approved
Greenville Bistro's commercial zoning application to operate a restaurant. On
February 24, 2017, the County wrote Mr. Mohney of Greenville Bistro a letter to
discuss "the possible operation of a business at [the property]" and to provide
Greenville Bistro with some information regarding the ordinances and zoning
regulations in play. The County informed Greenville Bistro the property is located
in an S-1 zoning district and that Ordinance Nos. 2673 and 4869 apply. The County
also explained the ordinances require sexually oriented businesses—and an adult
cabaret is a sexually oriented business—to be at least 1,500 feet from certain
properties.
F. Greenville Bistro Opens Bucks Racks & Ribs
On March 27, 2017, the County issued Greenville Bistro a certificate of use
and occupancy to operate a restaurant at the property. Greenville Bistro opened
Bucks Racks & Ribs, but not long after, the County suspected Bucks was operating
as an adult cabaret in violation of Ordinance Nos. 2673 and 4869. Following a May
12, 2017 inspection, the County issued two citations to Greenville Bistro. The
County also issued Greenville Bistro an "Official Notice" in which the County
declared, "The Certificate of Occupancy is for a restaurant and does not have live
entertainment. All patrons/personnel must be properly clothed. No swimsuits etc.
The use of the structure is for a restaurant only. Cease all use for live entertainment."
As summarized below in section III.B., the record contains testimony from a
private investigator and two undercover Greenville County Sheriff's deputies who
visited the property on later dates and detailed their experiences at Bucks. The
testimony included descriptions of the lap dances1 the witnesses paid for and
1
"Lap dancing" is defined as the "sexually stimulating erotic writhing and rubbing
of a woman's posterior against the lap of a seated, male customer." Richard A.
Spears, McGraw-Hill's Dictionary of American Slang and Colloquial Expressions
211 (4th ed. 2006).
received, and the testimony included their observations of the interactions between
the dancers and other patrons.
G. The Current Litigation
Greenville Bistro commenced the instant action against the County in May
2017, seeking declaratory and injunctive relief. Greenville Bistro argued injunctive
relief was appropriate for two reasons: (1) the County was violating the 2002
Consent Order and (2) Ordinance No. 4869 violates Greenville Bistro's right to free
speech. The County answered Greenville Bistro's complaint and counterclaimed for
injunctive relief of its own on June 14, 2017. The County argued it was entitled to
injunctive relief because Greenville Bistro was illegally operating (1) a sexually
oriented business and (2) a nightclub in an S-1 zoning district.
On June 16, 2017, the circuit court (Judge Stilwell) heard Greenville Bistro's
motion for a temporary injunction but continued the County's motion. The circuit
court issued an order temporarily enjoining the County from enforcing Ordinance
No. 4869 against Greenville Bistro. The County appealed to the court of appeals in
2017.
On March 13, 2018, the circuit court (Judge Gravely) convened a hearing on
the County's pending motion for injunctive relief, received testimony, but ruled it
did not have jurisdiction to rule on the County's motion because any grant of such
relief would impact the County's pending appeal regarding Ordinance No. 4869. The
County appealed this ruling to the court of appeals in 2018. In 2020, upon request
of the court of appeals, this Court accepted a transfer of both appeals. This opinion
resolves both appeals.
III.
The issues are as follows:
(1) Did the circuit court err in granting Greenville Bistro's motion for temporary
injunctive relief as to Ordinance No. 4869?
(2) Did the circuit court err in refusing to rule upon the County's motion for
temporary injunctive relief as to Ordinance No. 2673, and if so, is the County entitled
to temporary injunctive relief?
A. The County's Appeal of the Circuit Court's Grant of Injunctive Relief
to Greenville Bistro as to Ordinance No. 4869
The County argues the circuit court erred in temporarily enjoining
enforcement of Ordinance No. 4869. We agree.
"The granting of temporary injunctive relief is within the sound discretion of
the trial court and will not be overturned absent an abuse of that discretion." Zabinski
v. Bright Acres Assocs., 346 S.C. 580, 601, 553 S.E.2d 110, 121 (2001). "An abuse
of discretion occurs where the trial court is controlled by an error of law or where
the trial court's order is based on factual conclusions without evidentiary support."
Id."An injunction is a drastic remedy issued by the court in its discretion to
prevent irreparable harm suffered by the plaintiff." Scratch Golf Co. v. Dunes W.
Residential Golf Props., Inc., 361 S.C. 117, 121, 603 S.E.2d 905, 907 (2004). "The
facts alleged must be sufficient to support a temporary injunction and the injunction
must be reasonably necessary to protect the rights of the moving party." Atwood
Agency v. Black, 374 S.C. 68, 72, 646 S.E.2d 882, 884 (2007). "The purpose of an
injunction is to preserve the status quo and prevent possible irreparable injury to a
party pending litigation." AJG Holdings, LLC v. Dunn, 382 S.C. 43, 51, 674 S.E.2d
505, 509 (Ct. App. 2009).
"Generally, for a preliminary injunction to be granted, the plaintiff must
establish that: (1) he would suffer irreparable harm if the injunction is not granted;
(2) he will likely succeed on the merits of the litigation; and (3) there is an inadequate
remedy at law." Id. at 51, 674 S.E.2d at 508. We hold Greenville Bistro did not
establish it was likely to succeed on the merits of its claim.
1. The Circuit Court Hearing
The circuit court heard Greenville Bistro's motion for temporary injunctive
relief in June 2017. In spite of Mr. Mohney's affidavit swearing on behalf of
Greenville Bistro that Greenville Bistro and Platinum Plus were completely separate
entities, Greenville Bistro argued to the circuit court that it was a successor
corporation to Platinum Plus and that the County was violating the previous court
orders concerning the property (especially the 2002 Consent Order). Greenville
Bistro argued the prior court orders define the legally acceptable business model that
can be employed at the property. Greenville Bistro argued the County's adoption of
Ordinance No. 4869 effectively vitiated the 2002 Consent Order. Greenville Bistro
argued, "We want to operate the same business that was granted the rights given to
the predecessor under the 2002 order."
Greenville Bistro also argued the pertinent ordinances violate its First
Amendment rights. Finally, Greenville Bistro claimed enforcement of Ordinance
No. 4869 would be inequitable because the timing of the County's adoption of the
ordinance was highly suspect. On that point, Greenville Bistro argued the County
did not consider adopting Ordinance No. 4869 until after Greenville Bistro leased
the property, applied for a liquor license, and began the process of becoming a
supposed successor to Platinum Plus under the 2002 Consent Order.
2. The Circuit Court's July 2017 Order
Citing Mr. Mohney's affidavit, the circuit court rejected Greenville Bistro's
argument that it was a successor business to Platinum Plus. However, the circuit
court temporarily enjoined the County from enforcing Ordinance No. 4869 against
Greenville Bistro. The circuit court—in cursory fashion—addressed the necessary
elements to be satisfied before issuing a temporary injunction.
Regarding the element of irreparable harm, the circuit court found,
"[Greenville Bistro] may have a complaint as to the adaption [sic] of Ordinance 4869
soon after the issuance of the February 2017 Order. In keeping with established law,
[Greenville Bistro] would suffer irreparable harm if the subject ordinance abridges
its constitutional freedom of expression." When discussing Greenville Bistro's
likelihood of success on the merits, the circuit court—without explanation—found,
"Greenville Bistro has met its burden with respect to the issue of enforcement of
Ordinance 4869. . . . The Court's decision is based solely on the moving party's
alleged facts without regard to the ultimate merits of the case." When discussing
whether Greenville Bistro had an adequate remedy at law, the circuit court found,
"With regard to the enforcement of Ordinance 4869, [Greenville Bistro has] no
adequate remedy at law because [the County's] efforts to regulate [Greenville
Bistro's] business threaten [Greenville Bistro] with the loss of constitutionally
protected rights and freedoms."
3. Analysis
Because injunctive relief is a drastic remedy, a lower court must clearly
communicate the reasoning behind its decision to issue an injunction. See Rule
65(d), SCRCP ("Every order granting an injunction . . . shall set forth the reasons for
its issuance; shall be specific in terms; shall describe in reasonable detail, and not by
reference to the complaint or other document, the act or acts sought to be
restrained . . . ."). It is difficult to tell whether the circuit court based its finding of
likelihood of success on the merits upon constitutional grounds, equitable grounds
or both. We will address both points.
a. Did Greenville Bistro establish a likelihood of success on
the merits of its First Amendment claim?
"A trial court may consider a case's merit to the extent necessary to determine
whether a temporary injunction should issue." Curtis v. State, 345 S.C. 557, 577,
549 S.E.2d 591, 601 (2001). "In determining whether a temporary injunction should
issue, the trial judge should not consider the merits of the case, except as they may
enable the trial court to determine whether a prima facie showing has been made."
Id. at 576, 549 S.E.2d at 601. "When a prima facie showing has been made entitling
the plaintiff to injunctive relief, a temporary injunction will be granted without
regard to the ultimate termination of the case on the merits." Id. "However, when a
plaintiff's prima facie case depends on an allegation that a statute [is]
unconstitutional, the trial judge must consider the matter in determining the
reasonable necessity for a temporary injunction." Id."The power of local governments to zone and control land use is undoubtedly
broad and its proper exercise is an essential aspect of achieving a satisfactory quality
of life in both urban and rural communities." Schad v. Borough of Mount Ephraim,
452 U.S. 61, 68 (1981). Like other legislative enactments, this Court affords
"ordinances regulating sexually oriented businesses a presumption of
constitutionality which the attacking party has the burden of overcoming." Harkins,
340 S.C. at 621, 533 S.E.2d at 894; Centaur, Inc. v. Richland Cnty., 301 S.C. 374,
377, 392 S.E.2d 165, 167 (1990) ("Our decisions have generally applied [a
presumption of constitutionality] even when an ordinance is challenged on First
Amendment grounds."); Rothschild v. Richland Cnty. Bd. of Adjustment, 309 S.C.
194, 198, 420 S.E.2d 853, 856 (1992).
Greenville Bistro argues any presumption of constitutionality afforded to
Ordinance No. 4869 under South Carolina law is inappropriate because it brought a
federal civil rights claim pursuant to 42 U.S.C. § 1983,2 which Greenville Bistro
2
"Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . ." 42 U.S.C. § 1983. Pursuant to
Howlett v. Rose, 496 U.S. 356, 367 (1990), the circuit court has concurrent
jurisdiction with the United States District Court over Greenville Bistro's federal
civil rights claim.
claims triggered the application of federal law and invoked the circuit court's
concurrent federal jurisdiction. Greenville Bistro cites Schad in support of its
argument that Ordinance No. 4869 should be presumed unconstitutional. 452 U.S.
at 67 (Blackmun, J., concurring) ("[T]he presumption of validity that traditionally
attends a local government's exercise of its zoning powers carries little, if any,
weight where the zoning regulation trenches on rights of expression protected under
the First Amendment."); see Adultworld Bookstore v. City of Fresno, 758 F.2d 1348,
1352 (9th Cir. 1985) ("Regardless of the weight the trial court chose to afford to
Adultworld's evidence of lack of relocation sites, where a plaintiff makes a prima
facie showing of infringement of First Amendment rights, the presumption of
validity of a zoning ordinance disappears."); Messiah Baptist Church v. Cnty. of
Jefferson, 859 F.2d 820, 833 (10th Cir. 1988) (McKay, J., dissenting); Nat'l Ass'n
for Advancement of Colored People v. City of Philadelphia, 834 F.3d 435, 443 (3d
Cir. 2016); Ben Rich Trading, Inc. v. City of Vineland, 126 F.3d 155, 160 (3d Cir.
1997); City of Watseka v. Ill. Pub. Action Council, 796 F.2d 1547, 1551 (7th Cir.
1986).
Regardless of whether the ordinance is presumptively constitutional (under
the South Carolina line of cases) or presumptively unconstitutional (under the
federal line of cases), we hold Greenville Bistro has not established it is likely to
succeed on the merits of its claim that Ordinance No. 4869 is an unconstitutional
violation of its right to freedom of speech and expression.
"As a general principle, the First Amendment bars the government from
dictating what we see or read or speak or hear." Ashcroft v. Free Speech Coal., 535
U.S. 234, 245 (2002). First Amendment protections extend to non-obscene, sexually
explicit material. See Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 69-71 (1976);
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986). However, "nude
dancing is only marginally of First Amendment value and only within the outer
ambit of the First Amendment's protection." Imaginary Images, Inc. v. Evans, 612
F.3d 736, 744 (4th Cir. 2010) (internal quotation marks and citations omitted).
It is well-settled that sexually oriented businesses can have negative
secondary effects on their surrounding communities. See Young, 427 U.S. at 68-69.
Zoning restrictions are often implemented to balance the free speech concerns with
the regulation of secondary effects. Harkins, 340 S.C. at 613, 533 S.E.2d at 889-90.
In Harkins, we explained:
Zoning laws that have the effect of restricting freedom of expression
without regard to the content of the speech are referred to as "content
neutral" laws. Zoning ordinances merely restricting the location of
adult businesses without banning them altogether are considered
content neutral as long as they are based on their prevention of the
harmful secondary effects the Supreme Court has noted these sexually
oriented businesses may cause. Since these zoning laws are considered
content neutral, they are evaluated as "time, place, and manner"
regulations for purposes of determining their validity under the First
Amendment. Permissible time, place, and manner restrictions are
justified by a substantial governmental interest unrelated to free speech
and allow[] for adequate alternative avenues of communication of the
sexually explicit material. Therefore, sexually oriented business
regulations will be upheld if they are designed to serve the substantial
governmental interest of preventing harmful secondary effects and they
allow for reasonable avenues of communication.
Id. at 613-14, 533 S.E.2d at 890 (internal citations omitted); see Centaur, Inc., 301
S.C. at 379-80, 392 S.E.2d at 168-69. As discussed above, this Court has previously
upheld the constitutionality of location restrictions imposed upon sexually oriented
businesses by Ordinance No. 2673. See Harkins, 340 S.C. at 620-21, 533 S.E.2d at
893; Kenwood, 353 S.C. at 168-71, 577 S.E.2d at 433-35.
We hold Ordinance No. 4869 is a valid "time, place, and manner" regulation
because it serves the substantial governmental interest of preventing harmful
secondary effects and provides reasonable alternative avenues of communication for
adult businesses. Like Ordinance No. 2673—discussed in Harkins and Kenwood—
Ordinance 4869 does not constitute an outright ban on expression; instead, it
functions as an amendment to the ordinance regulating the location of sexually
oriented businesses. Ordinance No. 4869 amended Ordinance 2673's definition of
an adult cabaret to include establishments that regularly feature persons appearing
in a "state of semi-nudity." Ordinance 4869 also revised the definition of "semi-
nude." These were permissible actions by the County.
In enacting Ordinance No. 4869, the County reaffirmed the findings set forth
in Ordinance No. 2673, explaining the purpose of the Sexually Oriented Business
Code is to regulate sexually oriented businesses—not to impose limitations or
restrictions on the content of communicative materials but to promote the health,
safety, morals, and general welfare of Greenville County citizens. See Evans, 612
F.3d at 742 ("[W]hile the government must 'fairly support' its policy, it need not
settle the matter beyond debate or produce an exhaustive evidentiary
demonstration." (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
438 (2002))). Ordinance 4869 highlighted the numerous negative effects associated
with sexually oriented businesses and stated:
Each of the foregoing negative secondary effects constitutes a harm
which the County continues to have a substantial government interest
in preventing and/or abating. . . . Additionally, the county's interest in
regulating adult entertainment establishments extends to preventing
future secondary effects of either current or future adult entertainment
establishments that may locate in the county.
Further, Ordinance No. 4869 does not regulate sexually oriented businesses
out of existence because the County provides reasonable alternative avenues of
communication. The County's GIS Division Manager testified that although a
sexually oriented business is prohibited from operating at this particular location,
there are 89 zoned parcels and thousands of unzoned parcels that meet the location
requirements for sexually oriented businesses in the County. See Renton, 475 U.S.
at 54 ("[T]he First Amendment requires only that [the city] refrain from effectively
denying respondents a reasonable opportunity to open and operate an adult theater
within the city[.]"); Harkins, 340 S.C. at 621, 533 S.E.2d at 893 ("Since the trial
court found that nine S-1 sites are available for relocation, more than enough S-1
properties exist where six Adult Businesses could relocate.").
Other courts have upheld time, place, and manner ordinances with very
similar, if not identical, definitions of semi-nudity. See MJJG Rest. LLC v. Horry
Cnty., 102 F. Supp. 3d 770, 778 n.6 (D.S.C. 2015); Richland Bookmart, Inc. v. Knox
Cnty., 555 F.3d 512, 519 (6th Cir. 2009); Oasis Goodtime Emporium I, Inc. v. City
of Doraville, 773 S.E.2d 728, 731 n.4 (Ga. 2015); Sensations, Inc. v. City of Grand
Rapids, 526 F.3d 291, 294-95 (6th Cir. 2008).
Therefore, to the extent the circuit court's ruling was based on its conclusion
that Ordinance No. 4869 is likely an unconstitutional infringement of Greenville
Bistro's First Amendment rights, we hold the grant of injunctive relief was error, as
Greenville Bistro failed to prove it would likely succeed on the merits of its First
Amendment claim.3
3
We need not consider whether Greenville Bistro established the elements of
irreparable harm or inadequate remedy at law. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (providing that an
appellate court need not address remaining issues when resolution of a prior issue
is dispositive).
b. Did Greenville Bistro establish Ordinance No. 4869 is likely
invalid because of the County's allegedly inequitable
adoption of that ordinance?
Greenville Bistro argues the circuit court's ruling regarding the likelihood of
success on the merits was not only based on constitutional grounds, but also on the
ground that Ordinance No. 4869 was likely invalid for equitable reasons. The circuit
court's order can be interpreted as Greenville Bistro contends. When discussing the
procedural history of the case, the circuit court explained:
That [February 2017] Order simply allows Greenville Bistro to open
and operate a "similar business" to that of the former
tenant. . . . Twelve days after [the circuit court] entered its Order that
had the effect of allowing Greenville Bistro to open and operate, the
County adopted Ordinance 4869, which purports to amend the
definition of an adult cabaret to regulate establishments offering "semi-
nude" entertainment. Once Greenville Bistro commenced its
operations, [the County] believed those operations were in violation of
various County regulations and ordinances and began to enforce those
regulations against [Greenville Bistro].
When addressing whether Greenville Bistro suffered irreparable harm, the circuit
court stated, "[Greenville Bistro], however, may have a complaint as to the adaption
[sic] of Ordinance 4869 soon after the issuance of the February 2017 Order."
To the extent the circuit court based its conclusion that there was a likelihood
of success on the merits arising from the inequitable timing of the adoption of
Ordinance No. 4869, the circuit court plainly erred in two respects. The first point
of error centers upon the circuit court's mischaracterization of the February 2017
order (concluding the nuisance claim brought by the State against Elephant, Inc.) as
binding upon the County. That characterization is clearly erroneous as the County
was not a party to the nuisance litigation. In spite of this clear fact, Greenville Bistro
argues in its brief that "Greenville County acted inequitably by entering into a
Consent Order permitting a 'similar business' to operate at the subject location and
then vitiating that Consent Order by passing Ordinance 4869." We flatly reject that
argument, as the County was not a party to the nuisance litigation resulting in that
consent order.
The second point of the circuit court's error centers upon its finding that "[The
February 2017] Order simply allows Greenville Bistro to open and operate a 'similar
business' to that of [Platinum Plus]." We disagree. Nothing in the February 2017
order allows anything of the sort. The February 2017 order merely notes that
Greenville Bistro, a new tenant with no connection to Platinum Plus, "is seeking to
commence operations of a similar business as Platinum Plus in the location."
Greenville Bistro has not demonstrated that it would likely succeed on the
merits of its claim that the County inequitably adopted Ordinance No. 4869. Indeed,
there is a "familiar principle of constitutional law that [the] Court will not strike
down an otherwise constitutional statute on the basis of an alleged illicit legislative
motive."4 See Renton, 475 U.S. at 48.
In D.G. Restaurant Corp. v. City of Myrtle Beach, the Myrtle Beach city
council, in response to the anticipated establishment of a topless nightclub within
the city, adopted an ordinance prohibiting a business from displaying nudity within
500 feet of certain areas. 953 F.2d 140, 141 (4th Cir. 1991). The district court ruled
the ordinance was intended to prevent the business from opening and operating, and
was "attempting to restrict the message purveyed by topless entertainment[,]" thus
rendering the ordinance a content-based violation of the First Amendment. Id. at
143. The Fourth Circuit reversed, holding the ordinance was not an unconstitutional
regulation of the plaintiff's intended message but was rather a legitimate attempt to
regulate physical conduct for some other important governmental purpose. The
Fourth Circuit noted, "That it took D.G. Restaurant's announced plans to spur the
city to this realization does not in any way impute illicit or unconstitutional motives
to the Myrtle Beach city council." Id. at 146. The fact that a sexually oriented
business has prompted ensuing regulation does not mean the regulation is targeted
at the "eradication of any erotic message" the business may convey. Id.
Similarly, in Cricket Store 17, LLC v. City of Columbia, Taboo—a sexually
oriented business—received its business license from the City of Columbia and
opened a small retail store. 97 F. Supp. 3d 737, 742 (D.S.C. 2015), aff'd, 676 F.
App'x 162 (4th Cir. 2017). One month after Taboo opened, Columbia amended its
sexually oriented business ordinance, which prohibited Taboo from operating at its
current location. Since Taboo was an existing nonconforming business, it was given
two years to operate to allow it to recoup investment and relocation expenses. At
the end of the amortization period, Taboo sued to set aside the ordinance on First
Amendment free speech grounds.
4
But see United States v. O'Brien, 391 U.S. 367, 383-84 & n.30 (1968) (noting that
courts should look at legislators' actual motives in determining whether a statute is
a bill of attainder).
The district court granted summary judgment to the City of Columbia,
upholding the ordinance as a valid time, place, and manner regulation. The district
court rejected Taboo's argument regarding the suspect timing of the enactment of the
ordinance. The district court explained, "[T]he fact that Taboo's opening spurred the
City into action is not controlling, as this does not demonstrate that a ban on Taboo's
erotic message was a motive for the ordinances." Id. at 746.
The circuit court erred in concluding Greenville Bistro was entitled to a
temporary injunction on the ground that the timing of the adoption of Ordinance No.
4869 was suspect. Greenville Bistro did not establish it was likely to succeed on the
merits of this claim.5
c. Is Greenville Bistro a Successor Entity to Platinum Plus?
Greenville Bistro claims the 2002 Consent Order between the County and
Platinum Plus allows it to operate Bucks under its current business model because it
is a successor entity to Platinum Plus. Greenville Bistro argued to the circuit court,
"We want to operate the same business that was granted the rights given to the
predecessor under the 2002 order." This argument is flatly meritless and was
correctly rejected by the circuit court. Greenville Bistro is not a successor entity to
Platinum Plus.
For the foregoing reasons, we reverse the circuit court's grant of a temporary
injunction to Greenville Bistro, and we dissolve the injunction.
B. The County's Appeal of the Circuit Court's Denial of Temporary
Injunctive Relief to the County
By the time the circuit court convened a hearing of the County's motion for
temporary injunctive relief in March 2018, the County's appeal of the July 2017
order enjoining its enforcement of Ordinance No. 4869 was several months old. The
County explained to the circuit court that it was not seeking relief under Ordinance
No. 4869 but was instead seeking relief under separate ordinance provisions. The
County presented testimony as summarized below. The circuit court declined to
address the merits of the County's argument, finding the crux of the County's motion
involved issues already on appeal. Citing Rules 205 and 241 of the South Carolina
Appellate Court Rules, the circuit court concluded that ruling on the motion would
interfere with the court of appeals' exclusive jurisdiction. We disagree with the
5
We need not address the elements of irreparable harm and inadequate remedy at
law. See Futch, 335 S.C. at 613, 518 S.E.2d at 598.
circuit court and hold it had jurisdiction to rule upon the County's motion. We also
hold the County is entitled to temporary injunctive relief.
1. Jurisdiction
We first address Greenville Bistro's argument that because the County did not
specifically identify the jurisdictional question as an issue on appeal in its brief, the
issue is unpreserved. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be
considered which is not set forth in the statement of the issues on appeal."). We
disagree with Greenville Bistro. See Herron v. Century BMW, 395 S.C. 461, 466,
719 S.E.2d 640, 642 (2011) ("When an issue is not specifically set out in the
statements of issues, the appellate court may nevertheless consider the issue if it is
reasonably clear from an appellant's arguments."). The County's brief primarily
addresses the merits of its claim for injunctive relief, but the brief contains argument
against the circuit court's jurisdictional ruling. The brief sufficiently ensures the
Court does not have to "grope in the dark" to find the County's jurisdictional
argument. See Forest Dunes Assocs. v. Club Carib, Inc., 301 S.C. 87, 89, 390 S.E.2d
368, 370 (Ct. App. 1990) ("Every ground of appeal ought to be so distinctly stated
that the reviewing court may at once see the point which it is called upon to decide
without having to 'grope in the dark' to ascertain the precise point at issue.").
Turning to the merits of the jurisdictional issue, Rule 205, SCACR, explains
the effect an appeal has on a lower court's jurisdiction:
Upon the service of the notice of appeal, the appellate court shall have
exclusive jurisdiction over the appeal; the lower court or administrative
tribunal shall have jurisdiction to entertain petitions for writs of
supersedeas as provided by Rule 241. Nothing in these Rules shall
prohibit the lower court, commission or tribunal from proceeding with
matters not affected by the appeal.
Rule 205, SCACR (emphasis added); see Rule 241(a), SCACR ("The lower court or
administrative tribunal retains jurisdiction over matters not affected by the appeal
including the authority to enforce any matters not stayed by the appeal."); Stokes-
Craven Holding Corp. v. Robinson, 416 S.C. 517, 532-34, 787 S.E.2d 485, 493-94
(2016); Tillman v. Oakes, 398 S.C. 245, 254-56, 728 S.E.2d 45, 50-51 (Ct. App.
2012).
As extensively discussed above, the circuit court order granting Greenville
Bistro's motion for injunctive relief centered upon the constitutionality of the "semi-
nudity" provision in Ordinance No. 4869 and the allegedly suspect timing of the
adoption of that ordinance. Importantly, in addition to enjoining enforcement of
Ordinance No. 4869, the circuit court ruled, "Greenville Bistro must comply with
any and all applicable laws or ordinances existing at the time of issuance of the
February 9, 2017 Consent Order." To that end, the County's motion for injunctive
relief was based upon the grounds that Greenville Bistro was violating three different
ordinance provisions. First, the County argued Greenville Bistro violated Ordinance
No. 2673 because Bucks was a sexually oriented business, specifically an adult
cabaret, in which persons are regularly featured with bare female breasts and
buttocks. The County asserted pasties and small bikini bottoms are insufficient
forms of coverage to avoid the ordinance's definition of "nudity." Second, the
County argued Greenville Bistro violated Ordinance No. 2673 because Bucks
regularly features live performances that are characterized by "specified sexual
activities," which include "fondling or other erotic touching" and "simulated sex
acts," as referenced in the testimony summarized below. The County argues this
placed Bucks in the category of a prohibited "adult cabaret." Third, the County
argued Greenville Bistro violated section 6.1 of the Zoning Ordinance because
Bucks was illegally operating as a "nightclub."
The circuit court erred in ruling it did not have jurisdiction to address the
merits of the County's motion for temporary injunctive relief. The circuit court's
determination of whether the County was entitled to injunctive relief for the three
foregoing reasons was not a matter affected by an appellate court's resolution of the
validity of Ordinance No. 4869. None of the County's grounds for injunctive relief
involve the content of Ordinance No. 4869, specifically its provisions concerning
"state of semi-nudity" or "semi-nude."
2. Testimony at Hearing
Private investigator Steven Smith testified during the 2018 hearing that he
visited Bucks, paid a cover charge, and walked into the main room, where there were
five to seven dancers performing on stage showing their bare breasts (with "pasties"
covering their nipples) and their buttocks covered by small bikini bottoms or thongs.
Smith testified the dancers "simulated intercourse" and provocatively touched their
breasts, buttocks, and vaginal areas. Smith testified patrons would walk up to the
stage where dancers would put their crotches and buttocks in the patrons' faces. He
testified the dancers were also giving patrons lap dances where there was "grinding"
and "gyration," which Smith described as "motioning as if [the dancer and patron]
were having sex." Smith testified the dancers would put their bare breasts and bare
buttocks in the patrons' faces during lap dances. Private investigator Donald
Johnson, who worked with Smith, testified he also visited Bucks. His testimony
largely mirrored that of Smith.
An undercover investigator from the Greenville County Sheriff's Office
testified about his visits to Bucks. He testified that on the first night, after he paid a
cover charge and sat down at a table with two other investigators, two female dancers
immediately greeted them. He testified the dancers gave the two other investigators
private dances and tried to talk the three of them into going into the Champagne
Room for $850. He testified that after he declined the Champagne Room invitation,
the two dancers gave him a "double private dance." He testified the dancers were
"grinding" on him and allowed him to touch their bare breasts and exposed buttocks.
He described these lap dances as "simulated sexual intercourse." He testified about
his very similar observations when he and the other investigators returned the next
night, including the additional lap dances they received in the Champagne Room.
3. Merits of the County's claim for temporary injunctive relief
At this point, we must decide whether we should address the merits of the
County's claim for temporary injunctive relief or whether we should remand this
issue to the circuit court. Ordinarily, a remand would be in order if there are fact-
driven questions as to whether the moving party has established a likelihood of
success on the merits, an inadequate remedy at law, and irreparable harm. However,
we have held that these considerations do not apply when a city seeks an injunction
to enforce an ordinance. See City of Columbia v. Pic-A-Flick Video, Inc., 340 S.C.
278, 282, 531 S.E.2d 518, 521 (2000) ("In order for a city to get an injunction for a
zoning violation [it] must show: (1) that it has an ordinance covering the situation;
and (2) that there is a violation of that ordinance.").
A county may obtain injunctive relief to prevent violations of its ordinances.
See S.C. Code Ann. § 6-29-950 (2004). Also, Article 13 of the Zoning Ordinance
in this case provides the County may seek injunctive relief to enforce the provisions
of the ordinance. The records in both appeals include the facts relevant to whether
the County is entitled to a temporary injunction, so a remand is not warranted. The
County contends several zoning violations entitle it to injunctive relief. We agree
with the County that, at this stage, the County has presented sufficient proof that
Bucks illegally operates in this location as an "adult cabaret."
Ordinance No. 2673 regulates the operation of sexually oriented businesses in
the County. Although Ordinance No. 2673 allows sexually oriented businesses to
operate within an S-1 district, those businesses cannot operate within 1,500 feet of,
among other things, residential districts, churches, or licensed daycare facilities.
Bucks is in an S-1 district and falls within that 1,500-foot location restriction, so the
question becomes whether Bucks is, as the County argues, a sexually oriented
business. The ordinance lists eight types of businesses that are classified as sexually
oriented businesses—one of which is an "adult cabaret." The ordinance defines an
"adult cabaret," in pertinent part, as "a nightclub, bar, restaurant, or similar
commercial establishment which regularly features . . . [l]ive performances which
are characterized by . . . 'specified sexual activities' . . . ." As noted above,
"specified sexual activities" are defined in the ordinance to include: "(1) the fondling
or other erotic touching of human genitals, pubic region, buttocks, anus, or female
breasts; (2) sex acts, normal or perverted, actual or simulated, including intercourse,
oral copulation, or sodomy; and (3) masturbation, actual or simulated."
The County has presented sufficient proof at this stage that Bucks illegally
operates as an adult cabaret because it features live performances characterized by
"specified sexual activities." The testimony of the private investigators and
undercover deputy prove multiple instances of "specified sexual activities"
occurring at Bucks: (1) the dancers "simulated intercourse" while dancing and
provocatively touched their breasts, buttocks, and vaginal areas; (2) the dancers
placed their breasts, crotches, and buttocks in patrons' faces, which constitute "sex
acts, normal or perverted"; (3) the dancers simulated intercourse by giving lap
dances, during which they would grind on patrons' crotches and allow patrons to
touch and fondle their breasts and buttocks; and (4) the dancers "simulated
masturbation" by touching and fondling their vaginal areas. The County is entitled
to temporary injunctive relief on this basis.6
Conclusion
We reverse the circuit court's grant of injunctive relief to Greenville Bistro
and dissolve that injunction. We reverse the circuit court's ruling that it did not have
jurisdiction to rule upon the County's motion for injunctive relief. We hold the
County has established it is entitled to temporary injunctive relief. We remand to
the circuit court with instructions to enter the temporary injunction and to proceed
with all haste to the resolution of this case on the merits.
6
We need not consider whether Bucks illegally operates as a "nightclub" or whether
the dancers' activities violate the "nudity" or "semi-nudity" provisions of the
ordinances. See Futch, 335 S.C. at 613, 518 S.E.2d at 598.
REVERSED AND REMANDED.
BEATTY, C.J., KITTREDGE, HEARN and FEW, JJ., concur.