Harkins v. Greenville County
| Decision Date | 24 April 2000 |
| Docket Number | No. 25112.,25112. |
| Citation | 533 S.E.2d 886,340 S.C. 606 |
| Court | South Carolina Supreme Court |
| Parties | Teresa HARKINS, Appellant, v. GREENVILLE COUNTY, Respondent. J.O.D., Inc., Appellant, v. Greenville County, Respondent. R.P. Social Club, Inc., Appellant, v. Greenville County, Respondent. Runaway Entertainment, Inc., d/b/a The Landing Strip, Appellant, v. Greenville County, Respondent. Malcolm Johnson and Dawn Lewis, individually and d/b/a Taboo's, Appellants, v. Greenville County, Respondent. |
William G. Yarborough, III and Denise Campbell Yarborough, both of Ashmore & Yarborough, of Greenville; and Suzanne E. Coe, of Coe & Turnage, LLC, of Greenville, all, for appellants.
W. Howard Boyd, Jr. and Ronald K. Wray, II, of Gibbes, Gallivan, White & Boyd, PA, of Greenville, for respondent.
The opinion heretofore filed in this case, Opinion No. 25112, filed April 24, 2000 is withdrawn and the attached opinion is substituted in its place. The Conclusion section of the initial opinion has been clarified so that only the licensing portion of the Greenville County Ordinance is declared unconstitutional. Respondent's petition for rehearing is denied.
/s/ Ernest A. Finney, Jr., C.J. /s/ Jean H. Toal, J. /s/ James E. Moore, J. /s/ John H. Waller, Jr., J. /s/ E.C. Burnett, III, J.
Appellants The Landing Strip, Taboo's, Harkins, J.O.D., Nepal's, and R.P. Social Club ("the Adult Businesses") challenged the constitutionality of a Greenville County ("the County") permitting and zoning ordinance. The trial court found the ordinance constitutional and the sexually oriented businesses have appealed. We reverse.
In February 1995, the County enacted Greenville County Zoning Ordinance No. 2673 ("the Ordinance") regulating the location of all sexually oriented businesses. The Ordinance requires sexually oriented businesses to obtain a permit from the County's zoning administrator in order to operate. Furthermore, the Ordinance controls where sexually oriented businesses can locate. The Adult Businesses are all sexually oriented businesses located in zoned areas that do not permit adult uses.
The County sent each Adult Business a letter informing them they were in violation of the Ordinance and had one year to comply. At the end of that year, none of the Adult Businesses had complied with the Ordinance and the County ordered them closed. The Adult Businesses then filed suit claiming the Ordinance is unconstitutional and sought injunctive relief against the County. The County counterclaimed seeking an injunction requiring the Adult Businesses to comply with the Ordinance.
At trial, the Adult Businesses argued the Ordinance is an unconstitutional prior restraint because it fails to provide for prompt judicial review. Also, the Adult Businesses argued that the Ordinance impermissibly zoned them out of the County. The Adult Businesses supported this argument with expert testimony that only four to five S-1 sites were available in the County for sexually oriented businesses to locate.
The County responded by pointing out that the Ordinance required a permit to be issued within 30 days of the application unless one of seven specified conditions existed. The County argued that this time limit provided for prompt judicial review because if the permit was not issued within the 30 days, the sexually oriented business could seek relief from the court system. The County also presented expert testimony showing fourteen available S-1 sites. The expert also estimated that there were "a couple of hundred" sites available in the unzoned portion of the County.
The trial court ruled for the County on all issues. Initially, the trial court determined over one hundred sites existed for relocation in the unzoned portion of the County. Furthermore, the trial court found nine S-1 sites existed in the County where the Adult Businesses could relocate. Based on these findings, the trial court concluded the Adult Businesses were not impermissibly zoned out of the County.
The trial court also found the Ordinance was not an unconstitutional prior restraint because the zoning administrator did not have unbridled discretion in granting or denying a permit. Also, the trial court ruled that the relatively brief 30 day period between the permit application and decision by the zoning administrator guaranteed prompt judicial review. The Adult Businesses appealed and the following issues are before the Court:
Our United States Supreme Court has held that businesses providing non-obscene, sexually explicit material are entitled to protection by the First and Fourteenth Amendment. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (). However, the Supreme Court has also recognized sexually oriented businesses may have negative secondary effects, such as an increase in crime, on their surrounding communities. Young, 427 U.S. at 68, 96 S.Ct. at 2452-53. In light of these secondary effects, the Supreme Court has allowed local governments to regulate sexually oriented businesses, not based on the content of the speech, but as a response to their negative impact on the community. Id. Most often, local governments have chosen to use zoning restrictions and licensing requirements as the tools to balance free speech concerns with the regulation of secondary effects.
Local governments can enact zoning laws based on their police power to protect the health, safety, and welfare of the community. See, e.g., S.C.Code Ann. § 5-23-10 (1976); S.C.Code Ann. § 6-7-10 (1976). Zoning laws that have the effect of restricting freedom of expression without regard to the content of the speech are referred to as "content neutral" laws. Renton, at 46-47, 106 S.Ct. at 928. Zoning ordinances merely restricting the location of adult businesses without banning them altogether are considered content neutral as long as they are based on their prevention of the harmful secondary effects the Supreme Court has noted these sexually oriented businesses may cause. Id. Since these zoning laws are considered content neutral, they are evaluated as "time, place, and manner" regulations for purposes of determining their validity under the First Amendment. Id. Permissible time, place, and manner restrictions are justified by a substantial governmental interest unrelated to free speech and allows for adequate alternative avenues of communication of the sexually explicit material. Id. Therefore, sexually oriented business regulations will be upheld if they are designed to serve the substantial governmental interest of preventing harmful secondary effects and they allow for reasonable avenues of communication. Id.
Based on their police powers described above, local governments may also impose licensing requirements on adult businesses. However, when a municipality imposes licensing requirements on only businesses which retail a certain kind of speech, such as non-obscene, sexually explicit speech, serious questions as to the validity of the licensing requirements arise. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 604, 107 L.Ed.2d 603 (1990). In order not to offend the First Amendment, such licensing regulations must satisfy two tests: (1) the regulation must impose adequate standards for officials to apply in rendering a decision as whether to grant, deny, or revoke a license; and (2) the regulation must also impose procedural safeguards. Id. at 225-26, 110 S.Ct. at 605.
The County attempts to use both forms of regulations of businesses retailing sexually explicit materials: zoning restrictions based on location and imposition of licensing requirements. The Ordinance in this case is basically a duplicate of the Richland County ordinance this Court analyzed in both Centaur, Inc. v. Richland County, 301 S.C. 374, 392 S.E.2d 165 (1990) and Rothschild v. Richland County Bd. of Adjustment, 309 S.C. 194, 420 S.E.2d 853 (1992). Those cases focused mainly on whether the Richland County ordinance was a proper time, place, and manner zoning restriction. In regards to the licensing requirement, Centaur only analyzed whether the ordinance imposed adequate standards for officials to apply in rendering a decision as whether to deny, suspend, or revoke a license. However, as Centaur's footnote 4 makes clear, this Court did not discuss whether the licensing requirement met procedural safeguards so as to be constitutional.
The Adult Businesses argue that the Ordinance's licensing requirement operates as an unconstitutional prior restraint on speech because it fails to impose adequate procedural safeguards. We agree.
The Adult Businesses base their arguments on FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). In FW/PBS, the Supreme Court struck down a Dallas licensing scheme as being an impermissible prior restraint on protected speech. In finding the permitting scheme improper, the U.S. Supreme Court outlined a two prong analysis:
[T]he licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and there must be the possibility of prompt judicial review in the event...
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