Centaur, Inc. v. Richland County
| Citation | 392 S.E.2d 165,301 S.C. 374 |
| Decision Date | 13 November 1989 |
| Docket Number | No. 23193,23193 |
| Court | South Carolina Supreme Court |
| Parties | CENTAUR, INC., Appellant, v. RICHLAND COUNTY, South Carolina, Respondent. . Heard |
W. Gaston Fairey and J. Christopher Mills, Fairey & Parise, P.A., Columbia, for appellant.
C. Dennis Aughtry, Columbia, and Benjamin W. Bull, Phoenix, Ariz., for respondent.
This appeal by Centaur, Inc. challenges the constitutionality of Richland County's Ordinance regulating sexually oriented businesses. On County's motion for involuntary non-suit, Circuit Court held the Ordinance valid.
We affirm.
The Ordinance was enacted by Richland County Council on August 19, 1987, and amended September 1, 1987. 1 Prior to its adoption, six public hearings were conducted at which numerous citizens testified. In addition, County Council considered adult property use studies and reports from the cities of Indianapolis, Los Angeles, Cleveland, Phoenix, Oklahoma City, and Austin. These studies indicate that adult businesses have a negative effect on the value of nearby property and are associated with higher crime rates.
As amended, the Ordinance regulates "sexually oriented businesses," defined to include adult bookstores. Richland County Code § 8A-2(16). "Adult bookstore" is a The Ordinance requires that all sexually oriented businesses be located within a C-3 (General Commercial) zoning district and at least 1000 feet from a church, school, park, residential area, or another sexually oriented business. § 8A-12(b)-(d). Non-conforming uses are permitted to continue for a two-year amortization period commencing on August 1, 1987. § 8A-12(h).
commercial establishment which, as one of its "principal business purposes," sells material depicting or describing "specified sexual activities." § 8A-2(2).
The Ordinance also requires sexually oriented businesses to obtain a license from the County Zoning Administrator. Within thirty days of receipt of an application the Zoning Administrator must issue the license unless he finds one or more enumerated circumstances to be true, for example, that the applicant has failed to provide information "reasonably necessary" for issuance of the license. § 8A-5. The Ordinance further provides for suspension or revocation of a license under certain specified violations, §§ 8A-9, 8A-10.
Finally, the Ordinance regulates the internal configuration of sexually oriented businesses which exhibit adult films or videocassettes in viewing rooms of less than 150 feet of floor space, commonly referred to as "peep booths." § 8A-14. Among the requirements, the interior of the premises must be configured so that there is an unobstructed view of every area. § 8A-14(5).
Centaur leases two buildings on Two Notch Road in Richland County in which it operates the Chateau and Foxes X adult bookstores. Both businesses are located within 1000 feet of a church or residential area. Thus, Centaur will be required to either relocate the bookstores or bring them into conformity with the Ordinance.
Centaur commenced this action challenging the constitutionality of the Ordinance on several grounds:
(1) The Ordinance is an unconstitutional exercise of zoning power beyond that delegated to the County by enabling statutes.
(2) The locational provisions violate the First Amendment in that they do not provide reasonable alternative avenues of communication.
(3) Certain licensing provisions violate the First Amendment in that they are not narrowly tailored to serve the County's interest.
(4) The two-year amortization provision is an unconstitutional taking of property.
(5) The Ordinance is unconstitutionally vague.
Circuit Court rejected these contentions and upheld the Ordinance in its entirety.
As with other legislative enactments, ordinances are accorded a presumption of constitutionality which the attacking party has the burden of overcoming. Southern Bell Tel. & Tel. Co. v. City of Spartanburg, 285 S.C. 495, 331 S.E.2d 333 (1985); North Charleston Land Corp. v. City of North Charleston, 281 S.C. 470, 316 S.E.2d 137 (1984); Rush v. City of Greenville, 246 S.C. 268, 143 S.E.2d 527 (1965). Our decisions have generally applied this presumption even when an ordinance is challenged on First Amendment grounds. See Thomson Newspapers, Inc. v. City of Florence, 287 S.C. 305, 338 S.E.2d 324 (1985); City of Darlington v. Stanley, 239 S.C. 139, 122 S.E.2d 207 (1961); see also State v. Barrett, 278 S.C. 92, 292 S.E.2d 590 (1982) (obscenity statute).
Accordingly, the burden is upon Centaur to prove the unconstitutionality of the Ordinance.
With the foregoing BACKGROUND, we now address the issues raised by Centaur.
Centaur contends that enabling statutes do not grant County the power to regulate sexually oriented businesses, specifically Among those enumerated powers granted to counties by statute is one "to provide for land use and promulgate regulations pursuant thereto subject to the provisions of Chapter 7 of Title 6." S.C.Code Ann. § 4-9-30(9) (1986). Chapter 7 of Title 6 provides in part:
regarding internal configurations. We disagree
For the purposes of guiding development in accordance with existing and future needs and in order to protect, promote, and improve the public health, safety, morals, convenience, order, appearance, prosperity, and general welfare, the governing authorities of municipalities and counties may, in accordance with the conditions and procedures specified in this chapter, regulate ... the uses of buildings, structures, and land for ... public activities, and other purposes.
S.C.Code Ann. § 6-7-710 (Supp.1989).
The regulation of sexually oriented businesses and their interiors, pertaining as it does to the public use of buildings, is plainly embraced by the enabling statutes. Moreover, the record clearly demonstrates that the internal configuration requirements of "peep booths" promote the public health and general welfare. See also Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 (4th Cir.1986); Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585 (E.D.Wis.1988); Broadway Books, Inc. v. Roberts, 642 F.Supp. 486 (E.D.Tenn.1986). The regulation here is a proper exercise of the County's statutory authority. 2
Centaur's First Amendment contentions are governed by the decisions of the United States Supreme Court in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). These decisions hold that "content-neutral" ordinances such as Richland County's, 3 designed to regulate the secondary effects of adult businesses, are properly examined and analyzed as "time, place, and manner" regulations.
Centaur claims the Ordinance's locational provisions are not valid "time, place and manner" regulations in that they do not provide reasonable alternative avenues of communication.
In Renton, supra, the Supreme Court specifically addressed this requirement:
That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. And although we have cautioned against the enactment of zoning regulations that have "the effect of suppressing, or greatly restricting access to, lawful speech," we have never suggested that the First Amendment compels the Government to ensure that adult theatres, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices. In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city....
475 U.S. at 54, 106 S.Ct. at 932, 89 L.Ed.2d at 42 (citations omitted).
Centaur next contends that certain licensing provisions fail to satisfy the requirement that they be narrowly tailored to serve the County's interest.
Specifically, Centaur argues that § 8A-5(3) vests the Zoning Administrator with unfettered discretion to deny licenses when an applicant fails to supply information "reasonably necessary" for their issuance. We disagree. The Ordinance provides the Administrator with a standard "susceptible of objective measurement," thus adequately circumscribing his discretion. FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir.1988), rev'd on other grounds, --- U.S. ----, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). 4
Centaur further contends the provisions covering suspension and revocation of licenses are not narrowly tailored. These provisions, however, are "not substantially broader than necessary to achieve the [County's] interest." Ward v. Rock Against Racism, --- U.S. ----, ----, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661, 681 (1989). We uphold their constitutionality.
Centaur challenges the Ordinance's two-year amortization provision as an unconstitutional taking of its property.
In Collins v. City of Spartanburg, 281 S.C. 212, 314 S.E.2d 332 (1984), we held that an amortization provision is valid if reasonable. Reasonableness is determined by "[b]alancing the public gain against the private loss...." Id. at 214-15, 314 S.E.2d at 333.
A number of other courts have upheld adult-use amortization periods of varying...
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