Davis Adv. Sh. No. 31
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Condor, Inc., d/b/a
COPA a/k/a Video Depot
& Fun Fair II, Appellant,
v.
Board of Zoning
Appeals, City of North
Charleston, Respondent.
James A. Porter, a/k/a
James E. Potter, a/k/a
Hanes E. Potter, d/b/a
Big Jim's 24 Hour Video
and James A. Porter,
a/k/a James E. Potter,
d/b/a Big Jim's News &
Video, Appellants,
v.
Board of Zoning Appeals,
City of North Charleston, Respondent.
Appeal From Charleston County
James E. Lockemy, Judge
Opinion No. 24710
Heard September 18, 1997 - Filed November 10, 1997
AFFIRMED
p. 3
CONDOR INC., etc. v. BOARD OF ZONING APPEAL et al.
H. Louis Sirkin and Anita P. Berding of
Sirkin, Pinales, Mezibov & Schwartz, of
Cincinnati, Ohio; Thomas R. Goldstein of
Belk, Cobb, Infinger & Goldstein, of
Charleston; and John L. Weaver, of North
Charleston, for appellants.
J. Brady Hair; and Derk B.K. Van Raalte, both
of North Charleston, for respondent.
BURNETT, A.J.: Appellants, operators of sexually oriented
businesses, challenge the applicability and constitutionality of the City of
North Charleston's (City's) Ordinance 4-14 which, inter alia, restricts the
location of sexually oriented businesses. Appellants contend: 1) there is no
evidence they operated sexually oriented businesses in September 1992
and 2) the ordinance is unconstitutional as applied because it effectively
"zones out" sexually oriented businesses from the City.
BACKGROUND
In September 1992, the City building administrator notified
appellants they were operating sexually oriented businesses in violation of
4-14's zoning regulations and ordered them to cease and desist.
Appellants appealed this notification to the Board of Zoning Appeals
(Board) for the City. After a hearing, the Board affirmed the decision of
the building administrator. On appeal, the circuit court reversed finding
the Board had lacked a quorum to conduct business and remanded for a
new hearing.
A second hearing was held on November 6, 1995. Subsequent
to the hearing, the Board again affirmed the findings of the building
administrator and ordered appellants to cease and desist their operations.
Appellants filed a Verified Petition of Appeal. The circuit court affirmed.
SECTION 4-14
In relevant part, 4-14 defines "sexually oriented business" as
"an adult arcade, adult bookstore or adult video store, adult cabaret, adult
motel, adult motion picture theater, adult theater, escort agency, nude
model studio, or sexual encounter center." The definition of each of these
types of businesses is contained in 4-14. All sexually oriented businesses
must be located within an M-1 or M-2 zoning district (light or heavy
p.4
CONDOR INC., etc. v. BOARD OF ZONING APPEAL et. al
industrial) and meet certain proximity requirements.1
ISSUES
I. Is there any evidence to support the Board's finding
appellants were operating sexually oriented businesses in
September 1992?
II. Is 4-14 unconstitutional as applied because it effectively
"zones out" appellants' ability to operate sexually oriented
businesses within the City?
DISCUSSION
I.
Appellants concede they were operating sexually oriented
businesses at the time of the second Board hearing in November 1995, but
argue there was no evidence they operated sexually oriented
establishments in September 1992 when they were ordered to cease and
desist. They contend testimony that they operated sexually oriented
businesses two to three years before the November 1995 hearing is
insufficient to prove their businesses were sexually oriented before
issuance of the September 1992 cease and desist order. We disagree.
At the second Board hearing in November 1995, the City
Attorney stated City employees investigated the establishments three or
four days before the hearing. Wayne Nolin, a City building official,
testified he and another employee inspected Big Jim's News & Video. He
explained the business was open twenty-four hours a day and prohibited
individuals under eighteen years of age from entering. Nolin testified
there were video poker machines in the lobby. Sex paraphernalia and
magazines and videos with covers depicting individuals engaged in
heterosexual, homosexual, and group intercourse were for sale. In a
private room Nolin watched portions of four or five videos depicting sexual
1 The ordinance was passed in 1990 and provided businesses a two
year amortization period in which to relocate. In most pertinent parts,
4-14 is virtually identical to the Richland County Ordinance challenged in
Centaur, Inc. v. Richland County, 301 S.C. 374, 392 S.E.2d 165 (1990).
The Richland County ordinance was held facially constitutional. Id.
p. 5
CONDOR INC., etc. v. BOARD OF ZONING APPEAL et al.
intercourse between individuals. He purchased a sample magazine and
video which were viewed by the Board. Nolin testified the business only
offered for sale materials which appeared to be sexually oriented. He
testified he inspected the same business three years ago, it had the same
business purpose then, and was a "little bit cleaner" now. The parties
stipulated the employee who accompanied Nolin would offer similar
testimony.
Sean Kennedy, a City employee previously employed with
Building & Zoning, testified he and another City employee investigated
Fun Fair II. Kennedy observed electronic devices resembling genitals, and
video tapes and magazines with covers depicting individuals engaged in
heterosexual and homosexual activity. Kennedy purchased a magazine
which was viewed by the Board. In addition, Kennedy testified three
young women offered to dance for him. He paid the women the advertised
rate of $30 and the women danced naked for him in a back room.
Kennedy stated he saw nothing in Fun Fair II which was not sexually
related. He further testified, except for having the women dance, Fun
Fair II was the same as it was two or three years ago. The parties
stipulated the employee who accompanied Kennedy would offer the same
testimony.
The parties also stipulated, except for the nude dancing,
similar testimony would be offered regarding Big Jim's 24 Hour Video and
Video Depot. Based on this evidence, the Board determined the
establishments operated as sexually oriented businesses.
Although the witnesses described the nature of the businesses
as of November 1995, they also testified they observed the same activity in
the establishments either three or two or three years earlier. Although
the witnesses could have been more specific as to the date of their prior
investigations, the only reasonable inference is that they observed
appellants' businesses prior to issuance of the September 1992 cease-and
desist order. We conclude this evidence is sufficient to support the Board's
conclusion appellants were operating sexually oriented businesses at the
time of the issuance of the cease and desist order in September 1992.
Peterson Outdoor Advertising v. City of Myrtle Beach, _ S.C. _, 498
S.E.2d 630 (1997)(in the context of zoning, a decision of a reviewing body
will not be disturbed if there is evidence in the record to support its
decision); Sea Island Scenic Parkway Coalition v. Beaufort County Board
of Adjustments and Appeals, _ S.C._, 471 S.E.2d 142 (1996)(this
Court will affirm factual findings by a board of zoning appeals if they are
p. 6
CONDOR INC., etc. v. BOARD OF ZONING APPEAL et. al
not arbitrary and clearly erroneous in view of the evidence in the record).2
II.
In their brief, appellants argued 4-14 is unconstitutional as
applied because it effectively "zones out" their ability to operate within the
City. They claimed the ordinance provides no reasonable alternative
avenues of communication for their businesses in violation of the First
Amendment.3
At argument, appellants abandoned this issue. They conceded
there was evidence to support the circuit court's conclusion reasonable
locations meeting the zoning and proximity requirements of 4-14 exist.4
See, Ex parte McMillan, 319 S.C. 331, 461 S.E.2d 43 (1995)(issue conceded
in trial court cannot be argued on appeal).
In any event, the record supports the circuit court's conclusion.
Although appellants' witness testified there were no locations within the
City where appellants' businesses could relocate without violating 4-14,
the City's witness testified there were twenty-one properties within the M1
and M2 zoning districts which met the proximity requirements of 4-14.
This evidence is sufficient to support the circuit court's conclusion that, as
applied, 4-14 provides reasonable opportunity for appellants to relocate
and operate their sexually oriented businesses in the City and, therefore,
2Moreover, during argument, appellants' counsel admitted the City
had conducted only two investigations of appellants' businesses, one in
1992 and one in 1995.
3 See, City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 45, 106,
S.Ct. 925, 928, 89 L.Ed.2d 29, 37 (1986)("'[C}ontent-neutral' time, place,
and manner-regulations are acceptable so long as they are designed to
serve a substantial governmental interest and do not unreasonably limit
alternative avenues of communication.").
4Moreover, appellants admitted this issue was not presented in their
Verified Petition of Appeal to the circuit court. Accordingly, we find this
issue is not properly preserved for consideration on appeal. See,
Graniteville Manufacturing Co. v. Renew, 113 S.C. 171, 102 S.E. 18
(1920)(an issue not raised by exception to the circuit court on appeal from
a magistrate and a jury cannot be raised for the first time in the Supreme
Court).
p. 7
CONDOR INC., etc. v. BOARD OF ZONING APPEAL et. al
does not violate the First Amendment. Peterson Outdoor Advertising v.
City of Myrtle Beach, id.; Sea Island Scenic Parkway Coalition v. Beaufort
County Board of Adjustments and Appeals, id.; see also Rothschild v.
Richland County Board of Adjustment, 309 S.C. 194, 420 S.E.2d 853
(1992)(the party challenging the constitutionality of an ordinance as
applied has the burden of proving the ordinance unconstitutional beyond a
reasonable doubt).
For the above reasons, the order of the circuit court is
AFFIRMED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
p. 8