Posted by: Patricia Salkin | January 11, 2016

Fed. Dist. Court of SC Upholds Ordinances Restricting the Zoning and Licensing of Adult Orientated Business

The plaintiff MJJG Restaurant, LLC is the proposed operator of a second “restaurant/nightclub,” which would also be known as the Gold Club (the “Gold Club II”). It is located on the Kings Highway Property in an area of unincorporated Horry County zoned HC Highway Commercial, where restaurants and bars are permitted as of right. This case involved a First Amendment challenge to former and current zoning ordinances and a licensing ordinance adopted by the Horry County Council to regulate the operation of adult businesses. The location of adult businesses was regulated by Chapter 526 of the Horry County Zoning Code.

Plaintiffs first alleged that the zoning compliance process at issue in this case operated as a prior restraint on speech in violation of the First Amendment. The sole purpose of the zoning ordinances at issue in this case are to determine the nature of a proposed establishment; they do not prohibit the operation of adult businesses, but simply regulate when and where those businesses may operate. Here, the record indicated that the zoning administrator, Mincey, denied the plaintiffs’ application to run a restaurant and bar because the operation of an adult business in the proposed location would violate the applicable zoning ordinances. The court next determined that the ordinances were content-neutral and subject to intermediate scrutiny since the stated purposes of Current 526 and Chapter 12.5 were to “promote the health, safety, and general welfare of the citizens of the County, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of adult entertainment establishments within the County.” The defendants in this case produced “an exhaustive evidentiary demonstration,” which they relied upon in passing the subject ordinances, and therefore adequately demonstrated that the ordinances served a substantial government interest. Additionally, these ordinances were found to be narrowly tailored, and left open adequate avenues of communication: an additional 120 available sites. The court therefore dismissed plaintiffs’ prior restraint and equal protection claims.

Plaintiffs next argued that portions of Former 526.1 were overbroad because the definition of an “adult entertainment establishment” encompassed a wide range of conduct that is clearly protected by the First Amendment. However, Gold Club I was explicitly advised in the cease and desist letters that it was considered “an adult cabaret,” which was defined much more narrowly than the general category, and did not require application of 526.1. As such, the overbreadth argument failed. Likewise, plaintiffs’ vagueness argument failed because it was clear what conduct the mixed beverage policy reached and what the dancers did because the terms were matters of every day speech and of common usage.

Finally, the court found that the licensing ordinance 29–13 did not operate as an unconstitutional prior restraint because ordinance 29–13 set forth objective criteria and standards relevant to the issuance of licenses, including a 30–day time period for issuance following the filing of a completed application and provided for prompt judicial review of an intent to deny, suspend, or revoke a license. Accordingly, the defendants’ motion for summary judgment was granted and plaintiffs’ motion for summary judgment was denied.

MJJG Restaurant, LLC v Horry County, 102 F. Supp. 3d 770 (D. SC 4/6/2015)

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