MJJG Rest. LLC v. Horry Cnty.

• Decision Date: 06 April 2015
• Docket Number: Civil Action No. 4:13–cv–0885–BHH.
• Citation: 102 F.Supp.3d 770
• Court: U.S. District Court — District of South Carolina
• Parties: MJJG RESTAURANT LLC, Restaurant Row Waterway, LLC, and RT Entertainment, LLC, Plaintiffs, v. HORRY COUNTY, South Carolina, Rennie Mincey, in her official capacity as Horry County Zoning Administrator, Horry County Board of Zoning Appeals, Defendants.

102 F.Supp.3d 770

MJJG RESTAURANT LLC, Restaurant Row Waterway, LLC, and RT Entertainment, LLC, Plaintiffs,

v.HORRY COUNTY, South Carolina, Rennie Mincey, in her official capacity as Horry County Zoning Administrator, Horry County Board of Zoning Appeals, Defendants.

Civil Action No. 4:13–cv–0885–BHH.

United States District Court, D. South Carolina, Florence Division.

Signed April 6, 2015.

Kenneth Ray Moss, Jr., Wright Worley Pope Ekster and Moss, Little River, SC, John Michael Murray, Steven Daniel Shafron, Berkman Gordon Murry and Devan, Cleveland, OH, for Plaintiffs.

James Richard Battle, II, Michael Warner Battle, Battle Vaught and Howe, Conway, SC, Scott Dean Bergthold, Law Office of Scott D. Bergthold PLLC, Chattanooga, TN, for Defendants.

Opinion and Order

BRUCE HOWE HENDRICKS, District Judge.

This matter is before the Court on the defendants' motion for summary judgment (ECF No. 87) and the plaintiffs' motion for summary judgment (ECF No. 101). For the reasons set forth below, the defendants' motion for summary judgment is granted, and the plaintiff's motion for summary judgment is denied.

BACKGROUND

The following allegations and facts are drawn from the plaintiffs' Second Amended Complaint (the “Complaint”) (see ECF No. 48) and from the exhibits attached to the parties' submissions on the motions for summary judgment.¹The plaintiff RT Entertainment, LLC (“RT Entertainment”) was or is the operator of a “restaurant/nightclub” known as the Gold Club (“Gold Club I”), located at 2554 Jason Boulevard (the “Jason Boulevard Property”). (See Compl. ¶ 35; ECF No. 23–1 at 5.) It is undisputed that The Gold Club I has been operating in its current location for a number of years.

The plaintiff MJJG Restaurant, LLC (“MJJG”) is the proposed operator of a second “restaurant/nightclub,” which would also be known as the Gold Club (the “Gold Club II”). It appears that the owner RT Entertainment and operator of the Gold Club I, Michael Rose (“Rose”), is also the owner of MJJG and proposed operator of the Gold Club II. (ECF No. 23–1 at 5.) The proposed site of the Gold Club II is a parcel located at 9719 N. Kings Highway (the “Kings Highway Property”), which is owned by the plaintiff Restaurant Row Waterway LLC, (“Restaurant Row”). The Kings Highway Property is in an area of unincorporated Horry County zoned HC Highway Commercial, where restaurants and bars are permitted as of right. (Pl. Ex.²23, Dep. of Rennie Mincey at 30–31.) Prior establishments located on the Kings Highway property included “Thee Dollhouse,” which presented erotic dance performances until it was forced to relocate,³and “The Afterdeck,” an outdoor nightclub. (Pl. Ex. 23, Dep. of Rennie Mincey at 37–42.)

The Ordinances

This case involves a challenge to former and current zoning ordinances and a licensing ordinance adopted by the Horry County Council to regulate the operation of adult businesses. When MJJG initially sought to open the Gold Club II, the location of adult businesses was regulated by Chapter 526 of the Horry County Zoning Code (“Former 526”). As will be discussed, in September of 2013, the Horry County Council passed ordinances amending Former 526 and replacing it with new provisions (“Current 526”). The County Council also passed ordinances adopting new regulations that governed the licensing and operation of adult businesses (“Chapter 12.5”).

Former 526

Former 526.2 limited the number of “adult uses” that could exist on a single lot. It also prohibited adult entertainment from being located within certain distances of: (1) specified residential zones (2,000 ft); (2) schools, day cares, houses of worship and other specified uses (2,000 ft); and (3) other adult uses (2,500 ft). (ECF No. 87–3 at 1.) Former 526.1 contained a classification of “adult entertainment establishments,” which included but were not limited to: “cabarets, bookstore, theaters, video stores, peep shows, adult model studios, sexual encounter centers, escort services and motels, as defined herein; and any other establishment which contains activities characterized by the performance, depiction or description of ‘specified sexual activities'⁴or ‘specified anatomical areas.’ ”⁵Id.Former 526 went on to describe specific categories of adult entertainment establishments that were subject to its regulations, including an “adult cabaret,” which was defined as follows:

An establishment whose principal business purpose is the offering to customers of live entertainment which is intended to provide sexual stimulation or sexual gratification to such customers, and which is distinguished by or characterized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas.” Establishments that do not provide adult entertainment more than twelve (12) times per calendar year shall not be defined as an adult cabaret.

Id.at 5. Former 526.2 also prohibited adult entertainment establishments from hiring minors and required such businesses to allow police and other government authorities to inspect the premises at any time the establishment was open for business. The plaintiffs allege that under Former 526, less than 400 acres (0.06%) out of more than 685,000 acres in unincorporated Horry County met the requirements to serve as a location for an adult entertainment establishment.

Current 526

On September 3, 2013, the Horry County Council amended Chapter 526 via Ordinance 30–13. (ECF No. 48–3.) The newly amended Chapter 526 amended 526.1 to add a section entitled “Purpose, Findings and Rationale; Nonconforming Adult Entertainment Establishments.” Id.at 3. Subsection A contained a statement of purpose, which indicated that the Chapter was intended to, “regulate adult entertainment establishments in order 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.” Id.The provision also specifically stated that it had “neither the purpose nor effect” of “imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually-oriented materials,” or “deny [ing] access by adults to sexually-oriented materials protected by the First Amendment,” or “deny[ing] access by the distributors and exhibitors of sexually-oriented entertainment to their intended market.” Id.

In Subsection B, the county council made the following findings, which it claims are supported by a long list of cases and studies cited in the ordinance:

(1) Adult entertainment establishments, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation. Alcohol consumption impairs judgment and lowers inhibitions, thereby increasing the risk of adverse secondary effects.

(2) Adult entertainment establishments should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other adult entertainment establishments, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of adult entertainment establishments in one (1) area.

(3) Each of the foregoing negative secondary effects constitutes a harm which the county has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the county's rationale for this ordinance, exists independent of any comparative analysis between sexually-oriented and non-sexually-oriented businesses. Additionally, the county's interest in regulating adult entertainment establishments extends to preventing future secondary effects of either current or future adult entertainment establishments that may locate in the county. The county finds that the cases and documentation relied on in this ordinance are reasonably believed to be relevant to said secondary effects.

Id.at 5.

The plaintiffs imply that these findings and the changes made to Chapter 526 were implemented because the county council was advised that, as written, Chapter 526 would not pass constitutional muster.

The Horry County Council modified Former 526 by relaxing the space restrictions for the operation of adult entertainment establishments. Whereas the former regulations required a 2,000–ft. separation from sensitive land uses such as churches, schools, and residential zoning districts, Ordinance 30–13 reduced that separation requirement to 1,500 feet. (ECF No. 48 at 8–9.). And whereas the former regulations required a 2,500–ft. separation between adult entertainment establishments, Ordinance 30–13 reduced the required separation to 750 feet. Id.at 9. Ordinance 30–13 leaves 79 parcels on more than 415 acres—many in prime commercial areas—available in Horry County for adult businesses to operate as a matter of right. (Ex. 9; see also Ex. 17 at 108–111 (discussing available sites in Horry County).)

The new ordinance also amended the definitions used to classify adult entertainment establishments. For the purposes of this case, the following changes are relevant:

1. Current 526 eliminated the definition of an adult entertainment establishment that had previously existed as 526.1 and replaced it with the following definition, in the “Definitions” section in 526.2:

“Adult entertainment establishment”means an “adult bookstore or adult video store,” an “adult cabaret,” an “adult motion picture theater,” a “semi-nude model studio,” or a “sex paraphernalia store.”

2. Current 526 eliminated the previous definition of an “adult cabaret” and replaced it with the following definition:

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