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24710 - Condor, Inc., etc. v. Board of Zoning Appeal et al.

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

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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

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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.

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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

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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).

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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