May 16, 2019
From Richland County Robert E. Hood, Circuit Court Judge
R. Goldstein, of Belk Cobb Infinger & Goldstein, PA, of
Charleston, for Appellant.
M. Balthazor, of Riley Pope & Laney, LLC, of Columbia,
and Scott D. Bergthold, of Chattanooga, Tennessee, for
Store 17 d/b/a Taboo (Taboo) appeals the order of the circuit
court affirming the decision of the City of Columbia Board of
Zoning Appeals (the Board) in denying Taboo the right to
request a special exception from a city ordinance limiting
the operation of sexually-oriented shops within the limits of
the City of Columbia (the City). We affirm.
2011, Taboo applied for a license to operate the City's
only licensed adult business. The City issued the license on
December 5, 2011. On December 19, 2011, the City hired Scott
Bergthold, a Tennessee attorney who specializes in handling
adult businesses regulation/zoning. The City passed a
licensing ordinance to regulate adult businesses.
Subsequently, Bergthold drafted a zoning ordinance to
regulate adult business locations for the City. This
ordinance, sections 17-371 to -376 of the City of Columbia
Code of Ordinances, (the ordinance) was enacted in November
17-374(a) of the ordinance provides: "No variance from
any of the provisions of this section may be granted by the
zoning board of adjustment. No special exception regarding
any of the requirements of this section may be granted by the
zoning board of adjustments." Taboo brought
constitutional challenges against the ordinance in federal
court and lost. See Cricket Store 17, LLC v. City of
Columbia, 97 F.Supp.3d 737 (D.S.C. 2015) (granting the
City's motion for summary judgment), aff'd,
676 Fed.Appx. 162 (4th Cir. 2017), cert. denied, 138
S.Ct. 116 (2017).
Taboo's federal claims failed, Taboo applied to the Board
for a special exception. However, the Zoning Administrator
rejected and returned Taboo's application for special
exception by letter dated February 26, 2016, stating the
ordinance prohibited Taboo from filing an application for
special exception. Meanwhile, the City threatened criminal
prosecution against Taboo for violating the ordinance. On
January 28, 2016, the Zoning Administrator delivered a
written notice of violation letter to Taboo. Taboo then filed
two appeals with the Board- one appealing the Zoning
Administrator's decision to issue citations and a second
one appealing the Board's refusal to accept its
application for special exception. The Board accepted both
City scheduled both administrative hearings for April 12,
2016. After the hearings were conducted, the Board affirmed
the Zoning Administrator's decision on both counts. Taboo
appealed these rulings to the circuit court which affirmed.
This appeal followed.
court reviews appeals from a local zoning board pursuant to
the standards proscribed in section 6-29-840 of the South
Carolina Code (Supp. 2018). Austin v. Bd. of Zoning
Appeals, 362 S.C. 29, 35, 606 S.E.2d 209, 212 (Ct. App.
2004). Findings of fact will not be disturbed unless the
record contains no evidence to reasonably support them.
Id. However, "[i]ssues involving the
construction of ordinances are reviewed as a matter of law
under a broader standard of review than is applied in
reviewing issues of fact." Eagle Container
Co. v. Cty. of Newberry, 379 S.C. 564, 568, 666 S.E.2d
892, 894 (2008).