Posted by: Patricia Salkin | December 1, 2015

Fed. Dist. Court in SC Finds City Ordinances Regulating Sexually Oriented Retail Businesses Were Not a Prior Restraint on Speech

Taboo is a sexually oriented business located on “highly commercialized United States Highways” in Columbia, South Carolina. Less than one month after Cricket Store 17, LLC d/b/a Taboo opened, the City adopted Ordinance No. 2011–105, ECF No. 1–1, which is a comprehensive ordinance regulating sexually oriented businesses in the City and which amended its then-existing sexually oriented business ordinance. The 2012 Ordinance provided substantially the same purpose, findings, and rationale section as the 2011 Ordinance, and required Taboo to move from its current location. Prior to filing this action, Taboo sought a hardship extension of the amortization period under § 11–620(f); however, the hearing officer found that Taboo “failed to establish the amount of its investment made prior to December 29, 2011 and it has also failed to establish that it has not reasonably recouped its investment.” In this case, Taboo alleged First, Fifth, and Fourteenth Amendment violations against the City of Columbia regarding the City’s sexually oriented business ordinances.

Here, because the City’s ordinances were not an outright ban on sexually oriented businesses, they were analyzed as time, place, and manner regulations. Taboo argued that there had been no negative secondary effects at its location and pointed to new development nearby. However, the City was not required to show that Taboo had actually generated negative secondary effects in order to enforce the ordinances against it. While Taboo may not have generated negative secondary effects, this was not relevant to the constitutional question of whether, in enacting the ordinance, the City relied on evidence reasonably believed to be relevant to the problem of negative secondary effects. Since the court found that the City did so, the ordinances are therefore treated as content-neutral legislation.

Since it is well-established that attempting to preserve the quality of urban life and prevent negative secondary effects from sexually oriented businesses are substantial government interests, the court found this prong satisfied. Additionally, because the City’s interests “would be achieved less effectively absent the regulation,” the court determined that the City’s ordinances were narrowly tailored. This was because it is not unconstitutional to restrict the hours during which a sexually oriented business may operate, nor was it improper to require an in-person, notarized license application for individuals seeking employment in a sexually oriented business. As to the feasibility of alternative sites, the Court concluded that there were forty-six sites available in the City for a sexually oriented business to locate. Lastly, the court considered Taboo’s prior restraint, equal protection, and ex post factor arguments and found them to be without merit. Accordingly, the City’s motion for summary judgment was granted.

Cricket Store 17, LLC v City of Columbia, 97 F. Supp. 3d 737 (D. SC 3/31/2015)

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