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STATE OF SOUTH CAROLINA
COUNTY OF GREENVILLE
GREENVILLE BISTRO, LLC, a South Carolina Limited Liability Company, d/b/a Buck’s Racks & Ribs, and FRONTAGE ROAD ASSOCIATES, INC., a South Carolina Corporation,
Plaintiffs,
v.
GREENVILLE COUNTY, a Political Subdivision of the State of South Carolina, and WILL LEWIS, in his Official Capacity as Sheriff of Greenville County,
Defendants.
IN THE COURT OF COMMON PLEAS
THIRTEENTH JUDICIAL CIRCUIT
C.A. No.: 2017 - CP- 23 - 03372
PLAINTIFFS’ RESPONSE IN
OPPOSITION TO DEFENDANTS’
MOTION FOR TEMPORARY
INJUNCTION
PLAINTIFFS’ RESPONSE IN OPPOSITION
TO DEFENDANTS’ MOTION FOR TEMPORARY INJUNCTION
Plaintiffs respectfully respond to Defendants’ Motion for Temporary Injunction with this
Response in Opposition to Defendants’ Motion for Temporary Injunction.
I. INTRODUCTION
The property which is the subject of this litigation is located in unincorporated Greenville
County and, from 1999 through 2015, housed a nightclub named “ Platinum Plus ,” presenting
female entertainers who, while scantily glad, did not display “specified anatomical areas,” or
appear “semi-nude,” both as defined by the Greenville County Code, and was, therefore, not
considered to be an Adult Use. Platinum Plus was licensed by the State of South Carolina to sell
alcoholic beverages by the drink. Platinum Plus was operated by an entity known as Elephant,
Inc., which was a South Carolina corporation.
There are three other clubs in Greenville County: Lust, Scores and Lady Godiva, operating
using the same “business model” as Platinum Plus , and which competed with Platinum Plus.
Since opening in 1999, Platinum Plus operated for years without incident. However, starting in
2015, the business, as then operated by Elephant, Inc., began to attract intense scrutiny from law
enforcement. For unknown reasons, the other three similarly situated clubs did not, and do not,
draw the same concentrated scrutiny as does Platinum Plus.
As a result of this increased scrutiny, on April 17, 2015, the County, through the Solicitor’s
Office, brought a nuisance abatement action (Case No. 2015-CP-23-02597), under § 15-43-10, et.
seq., S.C.C. against Platinum Plus. This civil action resulted in a Consent Order filed June 3, 2015
which Consent Order, as more fully set out in Count I of the Complaint herein, adopted an earlier
Consent Order entered in 2002. It is this consent Order that is the center of Count I of the instant
complaint.
The 2015 Consent Order resulted in Elephant, Inc., shuttering the doors of Platinum Plus
from May 8, 2015, until November 8, 2015. Upon reopening, Elephant, Inc., continued to
allegedly violate the Consent Order, with the result that Platinum Plus was again shuttered from
approximately August 10, 2016 until February 7, 2017. Portions of the second order closing
Platinum Plus are presently on appeal to the South Carolina Court of Appeals.
Thereafter, Frontage Road and Elephant, Inc., terminated their business relationship and
Frontage Road and Greenville Bistro entered into a Lease Agreement (Exhibit D to the Complaint
herein), by which Greenville Bistro undertook to resume the operation in essentially the same form
as Platinum Plus but with the critical addition of food service on the premises. This Court, in
Case No, 2015-CP-23-02597, on February 9, 2017, issued a new Order which found in part:
“semi-nude,” banning a form of expression expressly permitted by the Consent Order applicable to
Bucks, Racks & Ribs.
Further, despite this Court explicitly approving Bucks, Racks & Ribs operating a similar
business, Greenville County is now trying to prevent any form of entertainment or expression at
the subject property.
II. FACTUAL AND PROCEDURAL BACKGROUND
In Plaintiffs’ Motion for Temporary Restraining Order, filed May 30, 2017, Plaintiffs
demonstrate how vague the regulations at issue are, and how arbitrary the County’s enforcement of
same is. Agents of the Defendant declared certain performers’ costumes to be governed by
Ordinance 2673 as amended by Ordinance 4869, while other performers are deemed to be wearing
costumes that are not in the purview of the Ordinances. All of these determinations are made “in
the eye of the beholder,” without the benefit of any sort of physical measurement or the application
of any objective standard.
The parties agree that a restaurant is a permitted use in the S-1 Zoning District applicable to
the subject property. The only evidence in the record before the Court is that live entertainment is
a customary accessory use, incidental to the use of the property as a restaurant (McLaughlin
Declaration, § IV). Therefore, a restaurant offering its customary accessory use of live
entertainment is a permitted use in the S-1 Zoning District, and, therefore, is a permitted use on the
subject site.
On July 17, 2017, this Court issued a Temporary Injunction enjoining Defendants from
enforcing Ordinance 4869 against Plaintiffs, which ordinance purported to broaden the definition
of an adult cabaret to include the presentation of “semi-nude” entertainment and to broaden the
definition of “semi-nude.” That injunction means that the only activity that would trigger the
application of the County’s sexually oriented business ordinance to Plaintiffs’ business would be if
the dancers were to appear nude or were to display “specified anatomical areas:”
(3) Adult cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(a) Persons who appear in a state of nudity: or
(b) Live performances which are characterized by the exposure of” specified anatomical areas” or by “specified sexual activities” or
...
(10) Nudity or a state of nudity means the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast.
...
(12) Semi-nude means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female- breast, as well as portions of the body covered by supporting straps or devices.
...
(15) Specified anatomical areas means the male genitals in a state of sexual arousal or the vulva or more intimate parts of the female genitals.
Greenville County Ordinance 2673, unamended.
Since an adult cabaret is described as, inter alia , being a restaurant, and since a restaurant is
a permitted use on the subject location, and since the Certificate of Occupancy issued by
Greenville County (Complaint Exhibit F), is for a restaurant, there can be no question that the
County’s adult entertainment regulations, pre-Ordinance 4869, are completely inapplicable to this
matter. Thus, the only mechanism by which the County might obtain the relief it seeks is via
Ordinance 4869, the enforcement of which has already been enjoined by this Court.
No matter what arbitrary and standardless measurements Defendants’ agents might make,
there can be no suggestion that the performers at Plaintiffs’ business, offering live entertainment as
declaratory judgment in their favor, leading to injunctive relief prohibiting the enforcement of the
County’s patently unconstitutional regulations against Plaintiffs.
Plaintiffs’ application for a temporary restraining order was set for oral argument on May
30, 2017, and the application was granted in part on June 2, 2017: 1
Therefore, the Defendants are restrained from closing the Plaintiffs business and from issuing citations based on nonconformity with zoning or operation of an “adult cabaret” contrary to its permit and/or certificate of occupancy pending the hearing on Plaintiffs’ Motion for Temporary Injunction. But this does not limit the applicability or enforceability of any other County Ordinances. ...
Order, June 2, 2017.
After a number of, generally routine, procedural matters moved through the Court,
Greenville County filed an Answer and a Counterclaim for injunctive relief on June 14, 2017. The
next day, on June 15, 2017, Greenville County filed its own Motion for Temporary Injunction.
Defendants’ Motion for Temporary Injunction was subsequently set for hearing for July 1, 2017,
which hearing was subsequently cancelled. In the meantime, this Court, (Stillwell, J.), heard oral
argument on Plaintiffs’ Motion for Temporary Injunction on June 16, 2017 and, on July 17, 2017,
partially granted Plaintiffs’ Motion for Temporary Injunction.
On August 16, 2017, Greenville County filed its Notice of Appeal from the Order partially
granting Plaintiffs’ Motion for Temporary Injunction. On or about January 19, 2018, Greenville
County noticed for hearing its pending Motion for Temporary Injunction for March 13, 2018,
originally set for hearing on July 1, 2017. Based on the issuance of the prior Order granting
Plaintiffs’ injunction, and based on the pending appellate case, the appropriate course of conduct
(^1) The Order was signed on June 1, 2017, but was not docketed until June 2nd.
would be to stay or abate the County’s request pending the adjudication of the appellate action
currently under advisement.
In its Motion for Temporary Injunction, Greenville County, as to Count I thereof, relying
solely and wholly on the amendment to its Adult Use Ordinance enacted by Ordinance 4869,
seeks:
On Count 1, a temporary injunction prohibiting Plaintiffs from operating or allowing a sexually oriented business, specifically an adult cabaret, at 805 Frontage Road; ...
Defendants’ Motion for Temporary Injunction, filed June 15, 2017, page 5.
In their Initial Brief on appeal, Defendants identify the issues on appeal as:
When a plaintiff’s prima facie case depends on a claim that a law is unconstitutional, the trial judge must consider the merits of that claim to determine its likelihood of success on the merits – a required showing for a temporary injunction. Absent such a showing, the plaintiff cannot prove irreparable harm or inadequate remedy at law, as there is neither harm in complying with a valid law, nor an injury to be remedied.
Here, the trial court enjoined enforcement of Ordinance No. 4869 without stating any reason why the Ordinance might be unconstitutional.
Appellants’ Initial Brief in Greenville Bistro, etc., et.al., v. Greenville County and Will Lewis, etc., et.al., Appellate Case No. 2017-001747, brief dated December 11, 2017, at page 2.
In its Order Partially Granting Plaintiffs’ Motion for Temporary Injunction, this Court
held:
Defendants, Greenville County and Will Lewis, their officers, agents servants, employees, and attorneys, and those persons in active concert or participation with them are hereby temporarily enjoined from, in any way, enforcing the provisions of Ordinance 4869 as to the Plaintiffs at the subject location;
Order Partially Granting Temporary Injunction, filed July 17, 2017, page 6.
Comparing the relief sought by Defendants in their Motion, Defendants’ Statement of
Issues on Appeal, and this Court’s Temporary Injunction Order, it is clear that the relief sought in
of the power to proceed with matters that are affected by the appeal, but is specifically allowed to proceed with matters not affected by the appeal. The rule states: ... Rule 205, SCACR; see also Rule 241(a), SCACR (“The lower court ... retains jurisdiction over matters not affected by the appeal....”). Thus, the existence or nonexistence of a stay under Rule 241 does not control the family court’s power to proceed with the action and address matters not affected by the appeal.^3 Rather, the lower court’s power to proceed is determined by whether the issue sought to be litigated in the lower court during the appeal is a “matter[ ] affected by the appeal” under Rules 205 and 241(a). See Arnal v. Fraser, 371 S.C. 512, 518–19, 641 S.E.2d 419, 422 (2007) (per curiam) (explaining that Rules 205 and 241(a) permit the family court’s action on matters not affected by the appeal and prohibit action on matters that are affected by the appeal).
(^3) The reference in Rules 205 and 241(a) to the “jurisdiction” of the lower courts does not refer to subject matter jurisdiction. Rather, the rules govern the circumstances under which the exclusive appellate jurisdiction Rule 205 grants to the appellate court deprives the lower court of the power to address a particular issue, or “matter,” during the pendency of the appeal.
Tillman v. Oakes, 398 S.C. 245, 256; 728 S.E.2d 45, 51 (Ct. App. 2012) [Footnote 4 omitted].
In the case sub judice , Greenville County seeks precisely what the rule prohibits: it seeks
an injunction enforcing Ordinance 4869, the enforcement of which this Court has already
enjoined. Granting Greenville County’s Motion for Temporary Injunction would directly and
expressly interfere with the exclusive jurisdiction of the South Carolina Court of Appeals.
Rule 205, SCACR has been further applied:
We take this opportunity to reiterate that while an appeal is pending, a lower court cannot act on matters affecting the issue on appeal. See Rules 205 & 225 SCACR.
Grosshuesch v. Cramer, 377 S.C. 12, 659 n.7, S.E.2d 112, 122 n. 7 (2008).
More directly, the South Carolina Supreme Court acknowledged the import of the rule,
holding:
Furthermore, Rule 205 divests the lower court or administrative tribunal of jurisdiction over “ matters affected by the appeal ,” which necessarily would
include a legal malpractice cause of action that is based on the outcome of the appealed verdict, judgment, or ruling. See Tillman v. Oakes , 398 S.C. 245, 255, 728 S.E.2d 45, 51 (Ct. App.2012) (“[T]he lower court’s power to proceed is determined by whether the issue sought to be litigated in the lower court during the appeal is a ‘matter affected by the appeal’ under Rules 205 and 24 1(a).”); Black’s Law Dictionary 68 (10th^ ed. 2014) (defining “affect” as “to produce an effect on; to influence in some way”).
Stokes-Craven Holding Corp. v. Robinson, 416 S.C. 517, 533, 787 S.E.2d 485, 493 (2016) [Emphasis in Original].
Even a settlement agreement affecting the issues on appeal may not be approved by a lower
court during the pendency of the appeal: Jim Lancaster v. Georgia-Pacific Corp., 403 S.C. 136,
138, 742 S.E.2d 867, 868 (2013). More directly on point, in SPAPW v. SC Dept. of Natural
Resources, 345 S.C. 594, 550 S.E.2d 287 (2001), the Court noted with apparent approval, the
granting by the Court of Appeals of supersedeas stays to preserve the status quo as that case made
its way through the Courts, 345 S.C. at 598-9.
Accordingly, since the relief sought by defendants in their Motion for Temporary
Injunction would directly contravene the relief already granted to Plaintiffs on July 17, 2017,
granting the relief sought by Defendants would directly interfere with the jurisdiction of the South
Carolina Court of Appeals, in violation of Rule 205, SCACR. Accordingly, Defendant’s Motion
for Injunction should be denied, or simply abated, pending the determination of the exact same
issues on appeal.
IV. THE FIRST AMENDRIGHT RIGHTS AT ISSUE IN THE INSTANT ACTION SUPPORT DENIAL OF THE DEFENDNAT’S MOTION
Laws in derogation of First Amendment protected speech are presumptively
unconstitutional:
… [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
More importantly, the mere showing of a deprivation of First Amendment or other federally protected rights in and of itself establishes both injury and damage. Basista v. Weir, 340 F.2d 74 (3d Cir. 1965).
Sambo’s of Ohio v. City Council of City of Toledo, 466 F.Supp. 177 (N.D. Oh., 1979).
Further demonstrating the irreparable harm that would be caused by granting Defendant’s
an injunction are the following cases:
Deprivations of constitutional rights are usually held to constitute irreparable injury as a matter of law. American Fed. of Gov. Employees, Loc. 1858 v. Callaway, [398 F. Supp. 176 (N.D. Al. 1975)]; Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).
International Association of Firefighters v. City Sylacauga, 436 F. Supp. 482 (N.D. Al. 1977).
... Irreparable injury inevitably occurs where there are property or other rights which are violated and for which there is no remedy other than injunctive relief. ...
National Association of Radiation Survivors v. Walters, 589 F. Supp. 1302 (N.D. Ca. 1984); reversed on other grounds, 473 U.S. 305, 105 S.Ct. 3180 (1985).
... irreparable injury is assumed to flow from a constitutional violation and plaintiffs are not required to show harm beyond that violation. 11 Wright & Miller’s [Federal Practice and Procedure] § 2948 at 440.
Decker v. United States Department of Labor, 473 F. Supp. 770 (E.D. Wi. 1979).
Greenville County is also seeking to inflict irreparable harm on Plaintiffs’ business. The
loss of income from Plaintiffs’ business is also irreparable harm:
Consequently, the judges of every State must follow it.” (citing U.S. Const., Art. VI, cl. 2 ; Howlett v. Rose , 496 U.S. 356, 371, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) ; ...
Parsons v. John Weiland Homes, 418 S.C. 1, 791 S.E.2d 128, 132, (S.C. 2016). See also State v. Lee, 360 S.C. 530, 602 S.E.2d 113 (S.C. App., 2004).
... Numerous cases support the conclusion that loss of customers, loss of goodwill, and threats to a business’ viability can constitute irreparable harm. See Tri State Generation [v. Shoshone River Power, Inc., 805 F.2d 351 (10th Cir. 1986)]; Roso-lino Beverage Distributors, Inc. v. Coca Cola Bottling Co., 749 F.2d 124, 125-26 (2d Cir. 1984); Otero Savings & Loan Ass’n v. Federal Reserve Bank, 665 F.2d 275, 278 (10th^ Cir. 1981); Federal Leasing, Inc., v. Underwriters at Lloyd’s, 650 F.2d 495, 500 (4th^ Cir. 1981); Valdez v. Applegate, 616 F.2d 570, 572 (10th^ Cir. 1980); John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 588 F.2d 24, 28-29 (2d Cir. 1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970); Associated Producers Co. v. City of Independence, 648 F.Supp. 1255, 1258 (W.D. o. 1986); Stanley Fizer Associates, Inc. v. Sport-Billy Productions Rolf Deyhle, 608 F.Supp. 1033, 1035 (S.D. N.Y. 1985); Great Salt Lake Minerals & Chemicals Corp. v. Marsh, 596 F.Supp. 548, 557 (D.Utah 1984).
Zurn Constructors, Inc. v. B.F. Goodrich Company, 685 F.Supp. 1172 (D.Kan. 1988).
The Fourth Circuit elaborated on Federal Leasing, Inc., v. Underwriters at Lloyd’s, 650
F.2d 495, 500 (4th^ Cir. 1981) in an opinion directly applicable and relevant to the instant case:
The district court found that RPM would be more harmed by the absence of an injunction than would MCAR if an injunction were issued. This finding is not erroneous, given evidence that RPM is likely to suffer economic injury severe enough to put it out of business if MCAR is allowed to provide photographic information to the customers RPM now services. While purely economic injury does not constitute irreparable harm sufficient to warrant injunctive relief, we have held that the right to continue a business is not measurable solely in economic terms. See Federal Leasing, Inc. v. Underwriters at Lloyd’s, 650 F.2d 495, 500 (4th^ Cir. 1981); Blackwelder, [ Furniture Co. v. Seilig Mfg. Co. , 550 F.2d at 189, 196 (4th^ Cir. 1977)] 550 F.2d at 197.
Montgomery County Assoc. of Realtors v. Realty Photo Master , 993 F.2d 1538, (4th^ Cir. 1993).
To the extent that Greenville Bistro’s business might be considered a nightclub and not a
restaurant, with its customary accessory use of live entertainment, South Carolina law requires that
zoning ordinances be strictly construed against the government and in favor of the property owner:
... statutes or ordinances in derogation of natural rights of persons over their property are to be strictly construed as they are in derogation of the common law right to use private property so as to realize its highest utility and should not be impliedly extended to cases not clearly within their scope and purpose. It
Additionally, strictly construing the subject Ordinances in favor of the property owner, as required
by South Carolina law, and recognizing that Defendant County wishes to cause irreparable harm to
Plaintiffs by threatening their First Amendment rights, and to disturb the last peaceable status
between the parties, by the application of a presumptively unconstitutional Ordinance,
Defendants’ Motion for Temporary Injunction should be denied or abated until the pending appeal
is concluded.
Respectfully submitted,
BANNISTER, WYATT & STALVEY, LLC
s/Luke A. Burke O. W. Bannister SC Bar No. 506; Fed. ID No. 1184 Luke A. Burke S.C. Bar No. 100033, Fed. I.D. 11322 401 Pettigru Street (29601) P. O. Box 10007 (29603) Greenville, South Carolina Phone: (864) 298-0084; Fax: (864) 298- Co-Counsel for Plaintiffs
And for: Luke Lirot, Esq. Florida Bar Number 714836 LUKE CHARLES LIROT, P.A. 2240 Belleair Road, Suite 190 Clearwater, Florida 33764 Telephone: (727) 536- Facsimile: (727) 536- Co-Counsel for Plaintiffs Admitted Pro Hac Vice
Dated March 8, 2018
