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. 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 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.
