                              THIRD DIVISION
                                 GOBEIL,
                          COOMER and HODGES, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                  February 20, 2019




In the Court of Appeals of Georgia
 A18A1958. STARDUST, 3007, LLC et al. v. CITY OF
     BROOKHAVEN.
 A19A0228. STARDUST, 3007, LLC et al. v. CITY OF
     BROOKHAVEN.

      GOBEIL, Judge.

      In Case No. A18A1958, Stardust, 3007, LLC (“Stardust”) appeals the DeKalb

County Superior Court’s order finding it in civil and criminal contempt for violating

the court’s previously issued injunction, which restrained Stardust and its owner

Michael Morrison from operating a sexual device shop at 3007 Buford Highway NE

in the City of Brookhaven (“the City”) due to Stardust’s failure to comply with the

relevant City ordinance. Stardust argues that (1) the superior court erred in holding

Stardust and Morrison in criminal contempt because the City failed to prove contempt

beyond a reasonable doubt ; (2) the superior court exceeded the statutory maximum
fine of $1,000 for a single act of criminal contempt ; (3) the superior court erred in

granting the City attorney fees without first holding an evidentiary hearing ; and (4)

the injunction violates the First Amendment of the Georgia Constitution.

      Additionally, in companion Case No. A19A0228, Stardust appeals a second

order finding it in civil contempt for violating the same injunction on several dates

in November 2017. In its sole enumeration of error, Stardust argues that the superior

court erred in its method of awarding civil contempt fines because Stardust’s conduct

constituted a single act of contempt.

      In reviewing these cases, we bear in mind that “[t]he question of whether a

contempt has occurred is for the trial court, and its determination will be overturned

only if there has been a gross abuse of discretion.” Affatato v. Considine, 305 Ga.

App. 755, 760 (2) (a) (700 SE2d 717) (2010) (citation and punctuation omitted).

“Once an act has been determined to constitute contempt of court, the action the court

takes to deal with the contempt determines whether the contempt is deemed ‘criminal’

contempt or ‘civil’ contempt.” Rhone v. Bolden, 270 Ga. App. 712, 714 (2) (608 SE2d

22) (2004) (citation and punctuation omitted). “The distinction between criminal and

civil contempt is that criminal contempt imposes unconditional punishment for prior

contempt to preserve the court’s authority and to punish disobedience of its orders.

                                          2
Civil contempt, on the other hand, is conditional punishment which coerces the

contemnor to comply with the court order.” Id. (citations and punctuation omitted).

For the reasons that follow, we affirm in both cases.



Background/Procedural History

      After its incorporation, the City enacted Ordinance 2013-01-51 in January 2013

to “regulate sexually oriented businesses in order to promote the health, safety, and

general welfare of the citizens of the City, and to establish reasonable and uniform

regulations to prevent the deleterious secondary effects of sexually oriented

businesses within the City” (“the Code”). This ordinance was amended in May 2013.

The Code, as amended, applies to various types of “sexually oriented businesses,”

including, as relevant here, “sexual device shops,” which the code defines as “a

commercial establishment that regularly features sexual devices” and does not include

“any pharmacy, drug store, medical clinic, or any establishment primarily dedicated

to providing medical or healthcare products or services.” “Regularly” is defined as

“the consistent and repeated doing of an act on an ongoing basis,” and “[f]eature

means to give special prominence to.” Finally, “[s]exual [d]evice” is defined as



                                         3
      any three (3) dimensional object designed for stimulation of the male or
      female human genitals, anus, buttocks, female breast, or for
      sadomasochistic use or abuse of oneself or others and shall include
      devices commonly known as dildos, vibrators, penis pumps, cock rings,
      anal beads, butt plugs, nipple clamps, and physical representations of the
      human genital organs. Nothing in this definition shall be construed to
      include devices primarily intended for protection against sexually
      transmitted diseases or for preventing pregnancy.




      The Code sets up a licensing system for sexually oriented businesses and their

employees and makes it “unlawful for any person to operate a sexually oriented

business in the City without a valid sexually oriented business license.” The Code

also sets out “spacing requirements” for sexually oriented businesses in the City.

Specifically, it prohibits a sexually oriented business from (1) operating “within 100

feet of another sexually oriented business” and/or (2) operating “within 300 feet of

a residential district, place of worship, park, or public library.”

      In February 2013, after the enactment of the Code, Michael Morrison opened

Stardust in the City, and applied for an occupational tax certificate as required under

the City Code. In the occupational tax certificate, Stardust’s “[d]ominant [b]usiness

[a]ctivity” was described as “Retail–Smoke Shop, Tobacco; related accessories;

                                           4
gifts.” In the application, Stardust expressly denied that it would be a sexually

oriented business “as defined by the Brookhaven City Code.” It is undisputed that

Stardust shares a property line with the Pink Pony, an adult entertainment club and

sexually oriented business, and Stardust is also within 300 feet of a residential area.

      In approximately April 2013, Stardust sent the City a letter stating that it would

be adding merchandise covered under the Code to its inventory, and asked whether

an amended business licence was necessary. Without waiting for the City’s response,

Stardust began selling items that qualified as “sexual devices” under the Code.

Thereafter, in June 2013, the City began issuing citations to Stardust for violating the

Code by (1) operating a sexually oriented business without a sexually oriented

business license; (2) operating a sexually oriented business within 100 feet of another

sexually oriented business; (3) operating a sexually oriented business within 300 feet

of a residential area; and (4) “failing to identify the lines of business at the time of

business registration[.]”

      In July 2014, Stardust and Morrison filed a civil complaint in DeKalb County

Superior Court challenging, in relevant part, the Code on the ground that it violated

the Equal Protection, Due Process, and Free Speech Clauses of both the United States

Constitution and the Georgia Constitution. The City counterclaimed and sought

                                           5
injunctions prohibiting Stardust and Morrison from operating a sexually oriented

business without a proper license and in violation of the Code’s spacing

requirements.1 The City ultimately moved for summary judgment and a permanent

injunction. On May 22, 2017, the DeKalb County Superior Court granted summary

judgment in favor of the City and issued a permanent injunction enjoining Morrison,

Stardust, and its employees “from engaging in or committing any of the following

acts[:]”

             a. Operating a sexual device shop without a valid sexually
      oriented business license issued by the City of Brookhaven.


             b. Operating a sexual device shop within 100 feet of any portion
      of the property line of another sexually oriented business.




      1
       Notably, while the civil complaint was pending in the DeKalb County
Superior Court, Stardust and Morrison filed a federal civil suit in the United States
District Court for the Northern District of Georgia, challenging the constitutionality
of the Code on a variety of grounds, including that it violated Stardust’s First
Amendment rights under both the United States and Georgia Constitutions. The
United States District Court granted summary judgment in favor of the City of
Brookhaven on each of Stardust’s federal constitutional claims and dismissed without
prejudice Stardust’s state constitutional claims. The United States Court of Appeals
for the Eleventh Circuit affirmed on appeal. Stardust, 3007 LLC v. City of
Brookhaven, 899 F.3d 1164 (11th Cir. 2018).


                                          6
             c. Operating a sexual device shop within 300 feet of any portion
      of the boundary line of a residential district, or the property line of a
      place of worship, park, or public library.


      Measurements shall be made in a straight line without regard to
      intervening structures or objects. Consistent with the City’s narrowing
      construction, Stardust will be considered a sexual device shop for
      purposes of this injunction only if it regularly displays on its premises
      at least 100 sexual devices.


(emphasis supplied). Stardust appealed to our Supreme Court. The Supreme Court

affirmed pursuant to Supreme Court of Georgia Rule 592 without opinion on February

19, 2018.

              Case No. A18A1958: The First Contempt Proceeding



      2
        Supreme Court of Georgia Rule 59 is similar to our Rule 36 and provides that,
in any civil case, the Supreme Court may affirm without an opinion when it
determines that “one or more of the following circumstances exist and is dispositive
of the appeal:

      (1) The evidence supports the judgment;

      (2) No harmful error of law, properly raised and requiring reversal appears; or

      (3) The judgment of the court below adequately explains the decision and an
      opinion would have no precedential value.”


                                         7
      On August 4, 2017, while Stardust’s appeal of the injunction was pending in

our Supreme Court, the City filed a motion seeking to hold Stardust and Morrison in

criminal and civil contempt for violating the permanent injunction and requesting

attorney fees.3 The City argued that Stardust had not applied for a sexually oriented

business license and had continued to operate a sexual device shop by displaying

more than 100 sexual devices in its store in violation of the injunction on the

following dates in 2017: May 24, May 28, June 1, June 2, July 20, July 23, and July

31. The City argued that on each of those seven dates Stardust violated all three

prohibited acts set forth in the injunction, totaling 21 separate violations, and sought

criminal contempt sanctions of $1,000 per violation. The City also sought civil

contempt sanctions to prevent future violations of the injunction. Finally, the City




      3
          Although Stardust’s appeal of the injunction was pending at the time the City
filed its contempt motion, the superior court had jurisdiction to enforce the permanent
injunction. OCGA § 9-11-62 (a) (“Unless otherwise ordered by the court, an
interlocutory or final judgment in an action for an injunction or in a receivership
action shall not be stayed during the period after its entry and until an appeal is taken
or during the pendency of an appeal.”); see also Knapp v. Cross, 279 Ga. App. 632,
634 (1) (632 SE2d 157) (2006) (holding that OCGA § 9-11-62 (a) creates “an
exception to the automatic supersedeas provisions[,]” and therefore, the trial court
had the authority to hold the appellant in contempt even though his appeal of the
permanent injunction was pending).

                                           8
requested attorney fees and litigation expenses related to pursuing the contempt

action under OCGA § 9-15-14 (a) and (b).4

       In response, Stardust did not address the merits of the City’s argument that it

should be held in contempt for violating the injunction. Instead, Stardust reiterated

its constitutional challenges to the injunction. With regard to attorney fees, Stardust

argued that, should it be found in contempt, it was entitled to a separate hearing

before any such fees could be awarded. Stardust further argued that the City was not

entitled to attorney fees because the City had not tendered any evidence of fees or

costs and had not shown that Stardust’s conduct justified an award of fees as a

sanction under OCGA § 9-15-14.




       4
         OCGA § 9-15-14 (a) provides that, in any civil action, “reasonable and
necessary attorney’s fees and expenses of litigation shall be awarded to any party
against whom another party has asserted a claim, defense, or other position with
respect to which there existed such a complete absence of any justiciable issue of law
or fact that it could not be reasonably believed that a court would accept the asserted
claim, defense, or other position.” Likewise, OCGA § 9-15-14 (b) provides that a
court “may assess reasonable and necessary attorney’s fees and expenses of litigation
in any civil action . . . [if the court finds] that an attorney or party brought or defended
an action, or any part thereof, that lacked substantial justification . . . or if it finds that
an attorney or party unnecessarily expanded the proceeding by other improper
conduct.”

                                              9
      On October 31, 2017, the City filed a reply brief, and the superior court

conducted an evidentiary hearing.5 Following the hearing, the City submitted a letter

brief on its attorney fees and expenses request, accompanied by a supporting affidavit

from counsel and billing records for services rendered from 5/22/2017 to 11/1/2017

related to the contempt action. The total for services rendered during this time period

was $23,874.36.

      On November 9, 2017, the superior court issued an order finding beyond a

reasonable doubt that Stardust and Morrison were guilty of criminal contempt for

willfully violating the injunction. The court found that “[t]he evidence that Stardust

is willfully operating a sexual device shop [was] overwhelming,” referencing

evidence presented at the hearing, including the presence of two outdoor signs and

lettering in Stardust’s windows promoting “Toys” and “Lubes,” and lighted display

cases inside the store featuring sexual devices, as well as a separate room featuring

well over 100 different types of sexual devices, including dildos and vibrators. The

Court then found beyond a reasonable doubt that Stardust violated all three

proscriptions of the injunction on each day in question. Pursuant to OCGA § 15-6-8


      5
        A transcript of the October 31, 2017 evidentiary hearing was not included as
part of the record on appeal.

                                          10
(5), the court imposed criminal contempt fines on Stardust and Morrison for the

violations, totaling $10,500, for which they were jointly and severally liable.

Additionally, in an effort “[t]o prevent future violations of–and to coerce compliance

with–the Injunction Order,” the court imposed a $10,000 prospective fine for each

future violation. The court also found that the City was entitled to recover $23,874.36

in attorney fees and expenses, under OCGA § 9-15-14 (a) and (b). In support of this

finding, the court noted that the October 31, 2017 hearing revealed “the absence of

any justiciable law or fact on which it could be reasonably believed that a court would

accept Stardust’s position”; that “Stardust’s position ‘lacked substantial

justification’”; and that Stardust’s conduct in violating the injunction “‘unnecessarily

expanded the proceeding.’” The appeal in Case No. A18A1958 followed.

      1. In two related enumerations of error, Stardust argues that the superior court

erred in holding it and Morrison in criminal contempt because the City failed to prove

contempt beyond a reasonable doubt. We conclude that Stardust has failed to meet

its burden to show error by the record.

      In finding Stardust and Morrison in criminal contempt, the superior court relied

upon the witness testimony and exhibits presented at the evidentiary hearing on

October 31, 2017. However, the record does not contain a transcript of the evidentiary

                                          11
hearing. “In the absence of a transcript, this Court must assume that the trial court

properly exercised its discretion in finding [the appellants] in contempt.” Rice v. Lost

Mountain Homeowners Ass’n, Inc., 288 Ga. App. 714, 715 (1) (a) (655 SE2d 214)

(2007); see also City of Byron v. Betancourt, 242 Ga. App. 71, 72-73 (2) (528 SE2d

841) (2000) (explaining that “it is the duty of the appellant to include in the record

those items which will enable the appellate court to perform an objective review of

the evidence and proceedings,” and, therefore, “where the transcript is necessary, as

in the case sub judice, and appellant omits it from the record on appeal or fails to

submit a statutorily authorized substitute, the appellate court must assume the

judgment below was correct and affirm.”) (citation, punctuation, and footnote

omitted). Although Stardust asserts in its brief that the City failed to carry its burden

of proving criminal contempt beyond a reasonable doubt , “[a]ssertions of evidence

[or a lack of evidence] in briefs or enumerations of error cannot satisfy [the

appellant’s] duty” to affirmatively show error by the record. Rice v. Baker, 264 Ga.

App. 704, 704 (1) (592 SE2d 186) (2003) (citation, punctuation, and footnote

omitted). Accordingly, because we do not have a transcript of the October 31, 2017

evidentiary hearing, we must assume that the trial court did not abuse its discretion

in finding that Stardust and Morrison were in criminal contempt.

                                           12
      2. Stardust argues that the superior court exceeded the statutory limit of a

$1,000 fine per act of criminal contempt because its conduct only constituted a single

act of contempt (operating a sexual device shop without a sexually oriented business

license). Stardust maintains that operating a sexual device shop within 300 feet of a

residential area or within 100 feet of another sexually oriented business cannot serve

as separate acts of contempt. This argument is unpersuasive.

      Under OCGA § 15-6-8 (5), a superior court may punish criminal contempt “by

fines not exceeding $1,000.00, by imprisonment not exceeding 20 days, or both.”

“These penalties are applicable to each separate act of contempt found by the trial

court.” Reece v. Smith, 292 Ga. App. 875, 876 (665 SE2d 918) (2008). The May 22,

2017 permanent injunction expressly prohibited Stardust and Morrison “from

engaging in or committing any of the following acts”:

      a. Operating a sexual device shop without a valid sexually oriented
      business license issued by the City of Brookhaven.


      b. Operating a sexual device shop within 100 feet of any portion of the
      property line of another sexually oriented business.


      c. Operating a sexual device shop within 300 feet of any portion of the
      boundary line of a residential district, or the property line of a place of
      worship, park, or public library.

                                          13
(emphasis supplied). The plain language of the injunction prohibits three separate

acts. Thus a commission of any of those acts constitutes a separate violation of the

injunction. Stardust does not dispute that it did not have a sexually oriented business

license on the seven dates in question or that it is within 100 feet of another sexually

oriented business and within 300 feet of a residential district. Rather, Stardust argues

that the only contemptuous act that can exist is operating a sexually oriented business

without a proper license, and that the operation of a sexual device shop within 100

feet of another sexually oriented business or within 300 feet of a residential area

cannot serve as separate prohibited acts. However, this argument challenges the terms

of the injunction itself, and such challenges cannot be raised in a contempt

proceeding. See Parland v. Millennium Const. Services, LLC, 276 Ga. App. 590, 592

(1) (c) n.9 (623 SE2d 670) (2005) (“[A] challenge to the validity of an injunction

cannot be made in a contempt proceeding to punish the violation of the injunction

when there was opportunity for effective review of the injunction[.]) (citation and

punctuation omitted).

      The superior court found that both Stardust and Morrison violated all three

proscriptions on each of the seven days in question, and that the violation of each

individual provision of the injunction constituted a separate contemptuous act. We

                                          14
discern no abuse of discretion in this determination. See Affatato, 305 Ga. App. at 760

(2) (a); see also Rolleston v. Cherry, 237 Ga. App. 733, 737 (5) (521 SE2d 1) (1999)

(“Whether a contempt of court has been committed in the violation of an injunctive

order, and how it shall be treated, are questions for the discretion and judgment of the

court that issued the order, and its discretion will not be interfered with by this court

unless there is an abuse of discretion.”) (citation and punctuation omitted).

Accordingly, the trial court was authorized to impose up to a $1,000 criminal

contempt fine per each of the 21 violations. The criminal contempt fine of $10,500

was well below the maximum authorized fine. Thus the trial court did not err, and we

affirm.

      3. Stardust argues that the superior court erred in granting the City attorney

fees, under OCGA § 9-15-14 (a) and (b), without first holding an evidentiary hearing.

We disagree.

      “In order for an award under OCGA § 9-15-14 to be valid, the trial court must

conduct an evidentiary hearing to determine the amount of reasonable and necessary

attorney fees, and the failure to do so is reversible error.” Shooter Alley, Inc. v. City

of Doraville, 341 Ga. App. 626, 628 (1) (b) (800 SE2d 588) (2017) (citation and

punctuation omitted); see also Williams v. Becker, 294 Ga. 411, 413 (2) (a) (754 SE2d

                                           15
11) (2014) (“[T]he court must hold an evidentiary hearing, after due notice of the fees

issue, to provide the [adverse] party the opportunity to confront and challenge the

evidence regarding the need for and value of the legal services at issue.”). “An

exception to this requirement exists where a party against whom attorney fees may

be awarded waives the hearing either expressly or by its conduct.” Shooter Alley, 341

Ga. App. at 628 (1) (b). The City argues that Stardust expressly waived its right to a

separate evidentiary hearing by not objecting to the Court’s proposal at the October

31, 2017, contempt hearing that the City would submit its attorney fees evidence after

the hearing via letter brief, and by its conduct when it did not respond to the City’s

letter brief.

       However, as discussed above, we do not have a transcript from the October 31

hearing, and, the parties do not agree as to what transpired at the hearing regarding

this issue. Therefore, we cannot determine whether Stardust expressly waived its right

to a hearing. Nevertheless, the City’s contempt motion put Stardust on notice that the

City was seeking attorney fees and litigation costs under OCGA § 9-15-14 (a) and (b).

Three days after the contempt hearing, the City submitted its letter brief detailing its

request for attorney fees and litigation expenses, along with a supporting affidavit

from the City’s counsel, and itemized billing records. The total for services rendered

                                          16
during the relevant time period was $23,874.36. Stardust did not respond or object

to the letter brief, affidavit, or billing records. Seven days later, the trial court entered

an order granting the City’s request for attorney fees and costs. Thus, the record

demonstrates that Stardust had a clear opportunity to challenge the request for

attorney fees and costs, and it waived the right to an evidentiary hearing by failing to

respond or object to the City’s request. See Shooter Alley, 341 Ga. App. at 628-29 (1)

(b) (holding that the appellant waived its right to an evidentiary hearing by its

conduct, where the appellant was aware that the appellee was requesting attorney fees

and failed to respond or object to the appellee’s post-hearing affidavit requesting

attorney fees and costs).

       4. Stardust argues that the injunction violates the First Amendment of the

Georgia Constitution.6 We conclude that this claim is procedurally barred.

       Stardust raised this identical claim in its appeal from the issuance of the

injunction, and our Supreme Court rejected it when it affirmed without opinion in

Case No. S18A0213. OCGA § 9-11-60 (h) provides that “any ruling by the Supreme

       6
       Although Stardust refers generally to the First Amendment without specifying
whether it is referring to the United States Constitution or the Georgia Constitution
, given Stardust’s statement in its brief that it is not pursuing federal claims in this
proceeding, we construe this claim as referring solely to the First Amendment of the
Georgia Constitution.

                                             17
Court or the Court of Appeals in a case shall be binding in all subsequent proceedings

in that case in the lower court and in the Supreme Court or the Court of Appeals as

the case may be.” And, Rule 59 decisions although “unreported [and]

nonprecedential . . . are still binding on the parties, for they establish the law of the

case as provided by OCGA § 9-11-60 (h).” Rolleston Living Trust v. Kennedy, 277

Ga. 541, 542 (591 SE2d 834) (2004). Thus, Stardust is precluded from relitigating

this issue. Id. at 543.

       Accordingly, for the reasons set forth above, we affirm in Case No. A18A1958.

                 Case No. A19A0228: Second Contempt Proceeding

       On November 20, 2017, while Stardust’s appeal of the first contempt order was

pending in this Court, the City filed a second motion for enforcement of civil

contempt sanctions in the Superior Court of DeKalb County. The City argued that,

despite the first contempt order, Stardust and Morrison continued to operate a sexual

device shop in violation of the injunction on the following seven dates in 2017:

November 10, 11, 13, 14, 15, 16, and 17. The City maintained that on each of those

dates, Stardust and Morrison violated all three of the proscriptions set forth in the

injunction, for a total of 21 violations, and argued that the $10,000 prospective civil

contempt fine should be imposed for each of those violations for a total of $210,000.

                                           18
      In response, Stardust argued that it had taken steps since the issuance of the

first contempt order to comply with the injunction. For instance: it had covered up all

mention of adult toys on the store’s window signs and other signs on the store’s

property; it had dispersed the adult toys it continued to sell throughout the store so

that no room was dedicated to adult products; it had removed adult toys from the

glass display cases; it reduced the adult toy inventory from 10% to 5% and had

reduced the stock keeping units to less than 100 sexual devices; and it added more

general healthcare products to its store, “including dental dams, condoms, body

massagers, latex gloves, gauze bandages, speculums, enema kits, feminine hygiene

and douching products, HIV/STD testing kits, and UV product sanitizing machines.”

Stardust also asserted that it had configured its displays of sexual devices to less than

100 in compliance with the injunction order, but maintained “that this reduction in

inventory of devices, if maintained, will eventually force Stardust out of business.”

Accordingly, Stardust requested that the court deny the City’s motion, or, in the

alternative, “refrain from imposing sanctions because Stardust has substantial

justification for operating in its current format.”

      The superior court held an evidentiary hearing on April 5, 2018, at which it

heard testimony from two witnesses for the City and one rebuttal witness for Stardust,

                                           19
considered a variety of exhibits, and heard arguments of counsel. Following the

hearing, the superior court found Stardust and Morrison in civil contempt of the

injunction. The court noted that in the first contempt proceeding it had imposed a

$10,000 prospective civil fine per violation, which was purgeable by abiding by the

injunction. The court found that both Stardust and Morrison had continued to violate

all three proscriptions of the injunction on each of the seven days in question, for a

total of 21 violations. Therefore, the court entered judgment in favor of the City and

imposed a $210,000 civil contempt fine against Stardust and a $210,000 civil

contempt fine against Morrison.7 This appeal follows.

      Notably, Stardust does not challenge the finding that it and Morrison were both

in contempt of the injunction. Rather, Stardust only challenges the manner in which

the fine was calculated. Nevertheless, we note that there was sufficient evidence

presented at the hearing from which the superior court could have found by a

preponderance of the evidence that both Stardust and Morrison were in civil contempt


      7
        We note that the sanctions imposed for civil contempt are not subject to a
statutory limit. See In re Harvey, 219 Ga. App. 76, 80 (464 SE2d 34) (1995)
(explaining that the monetary cap for contempt set forth in OCGA § 15-6-8 (5) is “not
applicable to sanctions imposed for civil contempt”); see also Shooter Alley, 341 Ga.
App. at 627-28 (holding that a civil contempt sanction of $10,000 per future violation
of an injunction was a valid award).

                                         20
of the injunction. See In re Harvey, 219 Ga. App. 76, 79 (464 SE2d 34) (1995) (“The

appropriate standard of proof in a civil contempt case is preponderance of the

evidence.”). Specifically, at the evidentiary hearing, a code enforcement officer for

the City and a private investigator testified that they visited the store on the dates in

question8 and observed over a thousand sexual devices on display throughout the

store. The exhibits submitted by the City depicting various images of the products

sold by Stardust and displays inside the store corroborated the witnesses’ testimony.

The store manager for Stardust testified that Morrison was responsible for the

decision making regarding the store. The code enforcement officer testified that

Stardust did not have a current business license or a sexually oriented business

license. She also confirmed that Stardust is within 300 feet of a residential zone and

within 100 feet of the Pink Pony, a sexually oriented business. Accordingly, the

evidence was sufficient to support the superior court’s finding that Stardust and

Morrison were in violation of all three proscriptions of the injunction on the dates

alleged.



      8
        The code enforcement officer testified that she visited Stardust on November
10, 13, 14, 15, and 17. The private investigator testified that he visited Stardust on
November 11 and 16.

                                           21
      5. Stardust argues that the superior court erred in imposing a $210,000 fine

because its conduct only constituted a single act of contempt (operating a sexual

device shop without a sexually oriented business license), and operating within 300

feet of a residential area or within 100 feet of another sexually oriented business

cannot serve as separate acts of contempt.9 Stardust raised this exact argument in Case

No. A18A1958, and we find this argument unpersuasive for the same reasons set

forth in Division 2.

      Alternatively, Stardust argues that, even if a violation of each provision of the

injunction can constitute a separate act, it is arbitrary for the superior court to

consider each calendar day as a separate violation, particularly given that the

injunction makes no reference to a measure of time as to how the contumacious act

will be gauged. As an initial matter, Stardust never raised this argument in the trial

court, and therefore, it is waived. Locke’s Graphic & Vinyl Signs, Inc. v. Citicorp

Vendor Finance, Inc., 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007) (“An

argument not raised in the trial court is waived and cannot be raised for the first time

on appeal.”). Additionally, this argument challenges the validity of the injunction

      9
       Although the City argues that Stardust did not preserve this argument for
appeal because it did not raise it below, we note that Stardust’s counsel made such an
argument during closing arguments at the evidentiary hearing.

                                          22
itself (in terms of how contemptuous conduct is measured under the injunction), and

thus, cannot be raised in a contempt proceeding. See Parland, 276 Ga. App. at 592

(1) (c) n.9 (“[A] challenge to the validity of an injunction cannot be made in a

contempt proceeding to punish the violation of the injunction when there was

opportunity for effective review of the injunction[.]”).

      Regardless, even assuming, arguendo, that these procedural hurdles did not

exist, “[w]hether a contempt of court has been committed in the violation of an

injunctive order, and how it shall be treated, are questions for the discretion and

judgment of the court that issued the order, and its discretion will not be interfered

with by this [C]ourt unless there is an abuse of discretion.” Rolleston, 237 Ga. App.

at 737 (5) (citation and punctuation omitted).

      The parties have been in litigation both in state and federal court over

Stardust’s selling of sexual devices in violation of the Code since 2014. The

injunction for which Stardust has been found in contempt issued on May 22, 2017,

several months prior to the November 2017 violations. The injunction clearly set

forth the three prohibited acts and expressly provided that “Stardust will be

considered a sexual device shop for purposes of this injunction only if it regularly

displays on its premises at least 100 sexual devices.” Thus, Stardust could have

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complied with the injunction by simply displaying fewer than 100 sexual devices, but

the evidence presented at the hearing established that it failed to do so. Instead, on the

seven days in November 2017 at issue, it continued to display at least 1,000 sexual

devices, which rendered it a “sexual device shop” as defined in the injunction.

Furthermore, this contempt proceeding was the second one, and, therefore, Stardust

was well aware of what was required to comply with the injunction, what civil

penalties it would face if it failed to comply, and that the superior court would

consider each calendar day as a separate violation. Accordingly, we discern no abuse

of discretion in the superior court’s determination that each calendar day on which

Stardust violated the injunction constituted a separate contumacious act.

      Consequently, for the reasons set forth above, we affirm in Case No.

A19A0228.

      Judgment affirmed in Case No. A18A1958. Judgment affirmed in Case No.

A19A0228. Coomer and Hodges, JJ., concur.




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