Zoning – Sexually Oriented Business – Temporary Injunction – Constitutional – Appeals

Although the appellant-county had appealed an order temporarily enjoining enforcement of its Ordinance No. 4869, since the county asserted that respondent was violating several other ordinances, the circuit court retained jurisdiction to determine whether to temporarily enjoin respondent’s operation of its restaurant. Given evidence of the barely-there clothing worn by respondent’s dancers, touching, and simulations of sex, the county was entitled to the temporary injunction it sought.

We reverse the circuit court’s grant of a temporary injunction in favor of respondent and its denial of a temporary injunction in favor of the county.

Greenville County’s Ordinance No. 4869 amended Greenville County Ordinance No. 2673’s definition of an adult cabaret to include establishments that regularly feature persons appearing in a “state of semi-nudity.” Ordinance No. 4869 also revised the definition of “semi-nude.” Given the existence of 89 zoned parcels and thousands of unzoned parcels that meet the location requirements for sexually oriented businesses in the county, Ordinance No. 4869 does not regulate sexually oriented businesses out of existence because the county provides reasonable alternative avenues of communications.

Therefore, to the extent the circuit court’s ruling was based on its conclusion that Ordinance No. 4869 is likely an unconstitutional infringement of respondent’s First Amendment rights, we hold the grant of injunctive relief was error, as respondent failed to prove it would likely succeed on the merits of its First Amendment claim.

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. First, the circuit court mischaracterized a February 2017 order (ending a nuisance claim brought by the state against respondent’s predecessor) as binding upon the county. That characterization is clearly erroneous as the county was not a party to the nuisance litigation.

Second, the circuit court found that “[The February 2017] Order simply allows [respondent] Greenville Bistro to open and operate a ‘similar business’ to that of [predecessor 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. The court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.

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.

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.

The circuit court’s determination of whether the county was entitled to injunctive relief for the 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.” The circuit court erred in ruling it did not have jurisdiction to address the merits of the county’s motion for temporary injunctive relief.

Witnesses testified to respondent’s dancers wearing pasties and thongs; performing lap dances; touching their breasts, buttocks and vaginal areas; and simulating sex with customers. Even though the county’s appeal of a ruling on Ordinance No. 4869 was pending, since the county asserted that respondent was violating several ordinances in addition to Ordinance No. 4869, the circuit had jurisdiction to address the merits of the county’s motion for temporary injunctive relief.

The record before us includes the facts relevant to whether the county is entitled to a temporary injunction, so a remand is not warranted.

The county has presented sufficient proof that respondent illegally operates as an “adult cabaret” in a prohibited location. The county is entitled to temporary injunctive relief.

Reversed and remanded.

Greenville Bistro, LLC v. Greenville County (Lawyers Weekly No. 010-072-21, 22 pp.) (George James, J.) Appealed from the Circuit Court in Greenville County (Robin Stilwell & Perry Gravely, JJ.) John Devlin and Scott Bergthold for appellants; Oscar Bannister, Luke Burke and Luke Lirot for respondents. S.C. S. Ct.