United States District Court, D. South Carolina, Florence Division
Henry Brewington and Virginia Brewington, individually and d/b/a Levelz Bar & Grill, Plaintiffs,
Melvina Devine Davis and City of Myrtle Beach, Defendants.
BRYAN HARWELL UNITED STATES DISTRICT JUDGE
Henry and Virginia Brewington filed this action in state
court alleging the City of Myrtle Beach (“the
City”) and Horry County (“the County”)
unconstitutionally targeted their nightclub, Levelz Bar &
Grill (“Levelz”), as part of a campaign to shut
down undesirable businesses in the Myrtle Beach area.
Plaintiffs asserted federal claims against the City and the
County pursuant to 42 U.S.C. § 1983, and brought state
law claims against the City, the County, and their landlord
Melvina Davis (“Defendant Davis”). After the City
removed the action to this Court, Defendant Davis filed a
crossclaim against the City and the County under 42 U.S.C.
matter is now before the Court for a ruling on the City's
motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and for
summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons
herein, the Court grants the motions as to Plaintiffs'
and Davis's § 1983 claims and remands their pendent
state law claims to state court.
April 2014, Plaintiffs entered into a five-year lease
agreement with Defendant Davis for property located at 515
9th Avenue North in the City. Compl. [ECF No.
1-1] at ¶¶ 3, 9; Lease [ECF No.
16-1]. After renovating the existing building,
Plaintiffs opened Levelz in July 2014. H. Brewington Dep.
[ECF No. 76-3] at p. 30; H. Brewington Aff. [ECF No. 79-2] at
p. 1; V. Brewington Aff. [ECF No. 79-3] at p. 1. Shortly
thereafter, the Myrtle Beach Police Department
(“MBPD”) began responding to multiple calls for
service involving Levelz; these calls related to the
• October 18, 2014: Officer Lisa
Robertson of the MBPD received an email from an agent of the
South Carolina Law Enforcement Division (“SLED”)
along with a picture indicating pyrotechnics were being
served to customers on liquor bottles at Levelz. The
information was conveyed to the Fire Marshal, who issued a
citation to Mr. Brewington (he subsequently pled guilty and
received a suspended fine).
• 1:33 AM on October 19, 2014: Two MBPD
officers were conducting a “keep check” of Levelz
due to a large crowd there, and while walking through the
club, they found a patron with marijuana and arrested him.
• 2:20 AM on December 14, 2014: Police
from the MBPD, SLED, and the Fifteenth Circuit Alcohol
Enforcement Team conducted an operation at Levelz to
determine if liquor was being sold after 2:00 AM on a Sunday
in violation of S.C. Code Ann. § 61-6-1610. After a
bartender served an undercover SLED agent a liquor drink,
SLED issued Mr. Brewington an administrative violation.
Officers also observed several liquor bottles on tables and
patrons pouring drinks at their own will; SLED issued them a
• 3:00 AM on December 14, 2014: Police
arrested a patron who had marijuana. Additionally, an MBPD
officer asked Plaintiffs about the strong odor of marijuana
at Levelz, and Plaintiffs denied allowing any marijuana or
illegal substances to be used at Levelz.
See MBPD Investigation File [ECF No. 76-11] at Bates
#001-02, 004, 144-47, 149-61; Compl. At ¶¶ 14-16;
H. Brewington Dep. at pp. 31-34; V. Brewington Dep. at pp.
in the day on December 14, 2014, Officer Robertson began a
nuisance file on Levelz. See MBPD Investigation File
at Bates #004. On December 17, Officer Robertson called Mr.
Brewington and told him she needed to meet with him and his
wife. Id. The next day (December 18), Officer
Robertson and two other MBPD officers met with Plaintiffs at
Levelz. Id.; V. Brewington Dep. at p.
Plaintiffs told the MBPD officers that the “night had
gotten out of control, ” that the security company they
had hired “was not doing their job, ” and that
they knew people were bringing alcohol inside Levelz and
doing “free pours” (though Plaintiffs apparently
did not realize this was illegal). See MBPD
Investigation File at Bates #004. The MBPD officers advised
Plaintiffs they were “on the radar for nuisance”
because of the events that had occurred on December 14 (i.e.,
the after-hours sale of liquor and free pours of alcohol at
tables). Id. at Bates #004-05. However,
the police visits continued:
• 3:20 AM on January 18, 2015: Mrs.
Brewington called the MBPD about two men who started a fight
inside Levelz that traveled outside into the parking lot; all
subjects were gone when the MBPD arrived. Mrs. Brewington
stated that one of the men was known to carry a pistol and
that both men departed in a car driven by a man known
“to do drive by shootings.”
• 9:56 PM on January 24, 2015: An MBPD
officer came to Levelz on a golf cart and told Plaintiffs
that a shooting in a nearby city (Conway) was somehow linked
• 12:30 AM on January 25, 2015:
Officers cited a passenger in the parking lot behind Levelz
for simple possession of marijuana.
• 1:00 AM to 4:30 AM on January 25,
2015: Multiple MBPD officers (up to ten at a time)
conducted multiple walkthroughs of Levelz.
• 1:07 AM on January 25, 2015: Officers
conducted a walkthrough of Levelz and arrested a patron for
• 2:24 AM on January 25, 2015: Four
MBPD officers entered Levelz. One officer went to the
men's restroom, one went onto the stage, and the other
two went to the back of the building and then onto the stage.
The officers left Levelz at 2:27 AM after finding no
• 2:54 AM on January 25, 2015: Two
females were having an argument near the rear entrance of
Levelz, and after club staff diffused the argument, the women
moved to the front of the club and began a fist fight. MBPD
officers yelled for them to stop, but the fight continued
with one of the individuals swinging at an officer and
striking him in the head. Both parties were arrested and
charged with fighting, assaulting a police officer, and
• 2:54 AM on January 25, 2015: Officers
arrested a person outside the front of Levelz for public
intoxication, and also found marijuana during the arrest.
See MBPD Investigation File at Bates #002-03, 005,
064-65, 123-43; Compl. at ¶¶ 17-24; H. Brewington
Dep. at p. 35; V. Brewington Dep. at pp. 38-40, 44-48.
January 26, 2015, Mrs. Brewington called Officer Robertson
complaining of police harassment and excessive police
presence at Levelz. See Compl. at ¶ 25; V.
Brewington Aff. at p. 2; MBPD Investigation File at Bates
#006. Officer Robertson scheduled a meeting with Plaintiffs
and City officials for February 2. Id.
January 27, 2015, Mr. Brewington signed a contract of sale
with Natalie Litsey, who agreed to purchase Levelz for $150,
000 and assume the current lease with Defendant Davis.
See Contract of Sale [ECF No. 79-1].
February 2, 2015, Plaintiffs attended the scheduled meeting
with City officials (who included Officer Robertson, the
Chief of the MBPD, and the City attorney) under the
impression that the meeting would address their recent
complaints of police harassment. See H. Brewington
Aff. at pp. 2-3; V. Brewington Aff. at pp. 2-3; H. Brewington
Dep. at pp. 39-40; V. Brewington Dep. at pp. 49-50. However,
the meeting was not a discussion about their complaints, as
Plaintiffs learned that the City desired to shut down Levelz.
Id. The meeting was unfruitful and concluded with
Plaintiffs refusing to voluntarily close Levelz. Id.
on February 17, 2015, the State of South Carolina (on the
relation of the Solicitor for the Fifteenth Judicial Circuit)
commenced a public nuisance action against Plaintiffs
pursuant to state law governing the abatement of nuisances.
See State of South Carolina on the relation of Jimmy A.
Richardson, II, Solicitor of the Fifteenth Judicial Circuit
v. Henry Brewington & Virginia Brewington d/b/a Levelz
Bar & Grill, Case No. 2015-CP-26-1228 [ECF No.
77-7]; see generally S.C. Code Ann. §§
15-43-10 et seq. (codifying state procedure for
abatement of nuisances).
to the filing of the public nuisance action, the following
events occurred. On February 5, 2015, Plaintiffs received
correspondence from the Solicitor notifying them
“‘that the property is reportedly being used for
the unlawful possession and sale of controlled substances and
for continuous breach of peace'” and that they had
“ten days to abate the nuisance.” Compl. at ¶
28; V. Brewington Dep. at pp. 52-53. On February 10, the
Solicitor sent the same notice to Plaintiffs' landlord,
Defendant Davis. Notice [ECF No. 19-1 at p. 2]; see
also Compl. at ¶ 29; H. Brewington Aff. at p. 3; V.
Brewington Dep. at p. 54; Davis Dep. [ECF No. 91-1] at p. 2.
Defendant Davis then informed Plaintiffs that she believed
they had defaulted on their lease based on the public
nuisance notice and that they needed to vacate the premises
within ten days. Davis Correspondence [ECF No. 19-1 at pp.
1-3]; see also H. Brewington Aff. at p. 3; V.
Brewington Aff. at pp. 2-3; H. Brewington Dep. at pp. 42-44.
February 15, 2015, a man was shot and killed outside Levelz.
Compl. at ¶ 31; V. Brewington Dep. at p. 28; MBPD
Investigation File at Bates #097-122. The victim had been a
frequent patron at Levelz. V. Brewington Dep. at pp.
58-59. Levelz had to immediately close because it was a crime
scene. H. Brewington Dep. at p. 65.
mentioned above, on February 17, 2015, the Solicitor (in the
name of the State of South Carolina) filed a verified
petition seeking a temporary injunction and a permanent
injunction against Levelz for operating a public nuisance in
violation of S.C. Code Ann. §§ 15-43-10 et
seq. See Verified Petition/Nuisance
Pleadings [ECF No. 77-7]. Plaintiffs were served with
the petition. V. Brewington Dep. at p. 59. The state circuit
court scheduled an emergency hearing for February 20, 2015.
H. Brewington Dep. at p. 64. However, before the hearing,
Plaintiffs-who were represented by counsel at the
time-reached an agreement with the State, and the circuit
court issued a consent order. See Order Granting
Motion for Permanent Injunction [ECF Nos. 16-2 & 76-2].
Under the consent order dated February 20, 2015, Plaintiffs
agreed to close Levelz for one year and were enjoined from
operating a public nuisance anywhere in South Carolina.
See Id. Specifically, the consent order provided:
1. Respondents Henry Brewington and Virginia Brewington d/b/a
Levelz Bar & Grill, their agents, servants, subordinates,
and employees, are enjoined and restrained from operating,
using, maintaining, and assisting in the using and
maintaining of Levelz Bar & Grill located at 515 9th
Avenue North, Myrtle Beach, South Carolina in Horry County as