Posted by: Patricia Salkin | September 5, 2014

Fed. Dist. Court in SC Upholds Constitutionality of Adult Business Ordinance

Columbia adopted an Ordinance providing that a sexually oriented business must only be located within an M–1 (light industrial) or M–2 (heavy industrial) district. Additionally, the use must be at least 900 feet from a church, a residential district, an outdoor recreational facility at which minors are likely to congregate, a lot devoted to residential use, a day care facility, or a cemetery it must be at least 1,000 feet from another sexually oriented business; at least 1,250 feet from any elementary or secondary school; and it may not be within the same building as another sexually oriented business.

Taboo sought a hardship extension of the amortization period under the Ordinance that provides that an application for a hardship extension “shall include evidence of purchase and improvement costs, income earned and lost, depreciation, and costs of relocation” and that “[t]he hardship extension shall be granted only upon a showing that the nonconforming sexually oriented business is unable to recoup its investments, made prior to the effective date of this Article, in its current location unless the hardship extension is granted.” Taboo’s extension request was denied, and Taboo filed this action seeking monetary damages, injunctive relief, and a declaration that the 2011 and 2012 Ordinances are unconstitutional.

The court found that the ordinance regulations are content-neutral time, place, and manner restrictions, and were thus subject to intermediate scrutiny. A substantial government interest was found in the City’s attempt to preserve the quality of urban life and prevent negative secondary effects from sexually oriented businesses are substantial government interests. Because Columbia’s interests “would be achieved less effectively absent the regulation,” the court found that Columbia’s ordinances are narrowly tailored. As to whether other avenues of communication were available, based on the evidence presented at the hearing, between 41 and 45 parcels, with a combined acreage of roughly 122 to 140 acres, were available for use by a sexually oriented business in Columbia under the restrictions imposed by the ordinances. Accordingly, Columbia’s ordinance met all three prongs of the Renton test and was found constitutional.

Cricket Store 17, LLC v City of Columbia, 996 F. Supp. 2d 422 (D. SC 2/10/2014)

The opinion can be accessed at:

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