City of Columbia v. PIC-A-FLICK VIDEO

• Decision Date: 24 April 2000
• Docket Number: No. 25113.,25113.
• Citation: 340 S.C. 278,531 S.E.2d 518
• Court: South Carolina Supreme Court
• Parties: CITY OF COLUMBIA, Appellant, v. PIC-A-FLICK VIDEO, INC.; James W. Keith, Jr., Chief Financial Officer of Pic-Flick Video, Inc., Respondents.

340 S.C. 278

531 S.E.2d 518

CITY OF COLUMBIA, Appellant, v. PIC-A-FLICK VIDEO, INC.; James W. Keith, Jr., Chief Financial Officer of Pic-Flick Video, Inc., Respondents.

No. 25113.

Supreme Court of South Carolina.

Heard December 1, 1999.

Decided April 24, 2000.

Dana M. Thye, of Office of the City Attorney, of Columbia, for appellant.

C. Rauch Wise, of Greenwood, for respondents.

TOAL, Justice:

Appellant the City of Columbia ("the City") sought a preliminary injunction against respondent Pic-A-Flick Video, Inc. ("Pic-A-Flick") for violating the provisions of the City's zoning ordinance governing the location of adult video stores. The trial court denied the injunction and the City appealed.¹

FACTUAL/PROCEDURAL BACKGROUND

City Ordinance 6-3146 to -3150.3 ("the Ordinance") regulates sexually oriented businesses within the City. Among the sexually oriented businesses regulated by the Ordinance are "adult video stores." The Ordinance defines "adult video stores" as "a commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:

(a) Books, magazines, periodicals or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides, or other visual representations which depict or describe "specified sexual activities" or specified anatomical areas"; or

(b) Instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities."...

COLUMBIA CITY CODE § 6-3147 (emphasis added). Under the Ordinance, these adult video stores must meet certain distance and zoning classification requirements in order to operate within the City.

Pic-A-Flick is a video sales and rental store with two locations within the City.² Since the early 1990s, Pic-A-Flick has sold and rented movies at each of these locations depicting "specified sexual activities" and "specified anatomical areas" as defined by the Ordinance. Pic-A-Flick's owner concedes that the movies fall under the Ordinance's definition. However, Pic-A-Flick denies that the sale or rental of such movies are a "principal business purpose" of the business.

These movies are located in a back room marked "Adult Videos" and Pic-A-Flick restricts access to the room by age. The back room occupies 294 out of 6,000 square feet at the Rosewood store and 434 of 13,000 square feet at the Main Street store. The Rosewood store carries approximately 250 covered movies out of 8,000 titles and the Main Street store carried approximately 400 adult movies out of 12,000 titles. Revenue generated by the adult movies represents 4.5% of Pic-A-Flick's total revenue for the two stores.

On August 3, 1998, Pic-A-Flick ran an advertisement in the State Newspaper for sales of their adult movies. That advertisement attracted the attention of the City's zoning administrator who visited the two locations and determined the two stores were adult video stores operating within the City without permits and in violation of distance restrictions. Pic-A-Flick initially appealed the zoning administrator's decision to the Zoning Board of Adjustment. Before a hearing on the appeal, the City filed suit seeking a preliminary injunction against Pic-A-Flick. As a result of the suit, Pic-A-Flick asked the Zoning Board of Adjustments to drop review of its appeal request until there was a decision on the injunction.

The trial court held a hearing on September 4, 1998 to address the injunction. On October 21, 1998, the trial court issued an order denying the injunction. The trial judge refused to grant the injunction because the City was unable to provide the court with its definition of "principal business purpose" as used in the Ordinance. The trial court also noted that the income generated by these movies represented a minimal portion of Pic-A-Flick's revenue and the City failed to show that Pic-A-Flick generated any negative secondary effects on the surrounding neighborhood. The trial court denied the City's motion to alter or amend the order. The City has appealed and the issue before this Court is:

Did the trial court properly refuse the injunction?

LAW/ANALYSIS

I. Denial of the Injunction

The City argues the trial court improperly denied an injunction against Pic-A-Flick. We disagree.

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. Fuller-Ahrens Partnership v. South Carolina Dept. of Highways and Public Transp., 311 S.C. 177, 427 S.E.2d 920 (Ct.App.1993). An abuse of discretion occurs where the trial court is controlled by an error of law or where the Court's order is based on factual conclusions without evidentiary support. Stanton v. Town of Pawley's Island, 309 S.C. 126, 420 S.E.2d 502 (1992). In order for a city to get an injunction for a zoning violation they must show: (1) that it has an ordinance covering the situation; and (2) that there is a violation of that ordinance. See 42 Am.Jur.2d Injunctions § 38 (1969). Here, the trial court found the City would likely be unable to show a violation of the Ordinance because the City failed to provide the trial court with a constitutional definition of "principal business purpose" that it uses in enforcing the Ordinance.

Our United States Supreme Court has held that businesses providing non-obscene, sexually explicit material are entitled to protection by the First and Fourteenth Amendment. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)

; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991)(recognizing that nude dancing also receives First Amendment protection). However, the Supreme Court has also recognized sexually-oriented businesses may have negative secondary effects, such as an increase in crime, on their surrounding communities. Young, 427 U.S. at 71,

96 S.Ct. at 2452-53. In light of these secondary effects, the Supreme Court has allowed local governments to regulate sexually oriented businesses, not based on the content of the speech, but as a response to their negative impact on the community. Id. Zoning restrictions on store location, such as in the Ordinance, are one mechanism municipalities may use to regulate adult video stores.

The Ordinance classifies adult video stores by whether a "principal business purpose" of the store is the sale or rental of the specified merchandise. A definition of "principal business purpose" is not contained in the Ordinance. To determine "principal business purpose," the zoning administrator testified that he looks at whether a store promoted the adult material and whether the adult movies were kept in an area of restricted access. However, the City zoning administrator also testified that he would still consider Pic-A-Flick to be an adult video store if it did not advertise the adult videos and they were not kept in a restricted area. The City zoning administrator finally admitted under cross examination that the City's position is the sale of even one movie described by the Ordinance can make a business an adult video store and subject to the Ordinance.³ Since the zoning administrator could not supply a clear definition of "principal business purpose," the trial court found that it was unlikely that the City would prevail in showing a zoning violation by Pic-Flick.

The trial court also relied on the evidence that adult videos represented less than 5% of Pic-A-Flick's revenue to find that the City was not likely to prevail on the merits of the action. This ruling was not, as the City mischaracterizes it, a ruling that by law less than 5% sales of adult videos is allowable under the Ordinance. Instead, the trial court found that unless the City could provide more guidance on the standard it uses to enforce the Ordinance, he was not going to preliminarily enjoin Pic-A-Flick based on such minimal numbers.

We agree with the City's argument that the trial court should not have looked to see whether Pic-A-Flick created deleterious ("secondary") effects in the neighborhood. Municipalities do not have to show negative secondary effects in order to enforce adult zoning provisions. As this Court held in Restaurant Row Associates v. Horry County, 335 S.C. 209, 220, 516 S.E.2d 442, 448 (1999):

Adult businesses cannot exclude themselves from legitimate zoning regulation by providing expert testimony that they do not currently produce negative secondary effects. Local governments have the power to zone the location of adult businesses without any individualized showing the businesses produce negative secondary effects.

Here, Pic-A-Flick cannot rely...