MJJG Rest., LLC v. Horry Cnty.

• Citation: 11 F.Supp.3d 541
• Decision Date: 28 March 2014
• Docket Number: Civil Action No. 4:13–885–MGL.
• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Parties: MJJG RESTAURANT, LLC, and Restaurant Row Waterway, 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.

11 F.Supp.3d 541

MJJG RESTAURANT, LLC, and Restaurant Row Waterway, 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. 4:13–885–MGL.

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

Signed March 28, 2014.

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

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

OPINION AND ORDER

MARY G. LEWIS, District Judge.

Before this Court are Plaintiffs' Motions for Preliminary Injunction brought pursuant to Federal Rule of Civil Procedure 65. (ECF No. 6 & ECF No. 37.) Plaintiffs ask this Court to issue a preliminary injunction enjoining the enforcement of Chapter 526 of the Horry County Zoning Ordinance against Plaintiffs as well as a preliminary injunction enjoining the enforcement of Horry County Ordinances 29–13 and 30–13, adopted on September 3, 2013. For the reasons set forth herein, this Court denies Plaintiffs' requested relief.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs MJJG Restaurant LLC and Restaurant Row Waterway LLC (“Plaintiffs”) brought this action on April 3, 2013 against Defendants Horry County, South Carolina, Rennie Mincey, in her official capacity as Horry County Zoning Administrator, and the Horry County Board of Zoning Appeals challenging the constitutionality of Section 526 of the Horry County Zoning Code (“Section 526”) and seeking damages as well as declaratory and injunctive relief related to the application of Section 526. (ECF No. 1.) On May 8, 2013, Plaintiffs filed their Motion for Preliminary Injunction indicating that Plaintiff MJJG Restaurant LLC (“MJJG Restaurant”) desired to open a restaurant and night club offering dance performances to patrons under the trade name “The Gold Club” (hereinafter “Gold Club II”) on property owned by Plaintiff Restaurant Row Waterway LLC (“Restaurant Row”). (ECF No. 6–1 at 1.) By way of additional background, Plaintiff MJJG Restaurant sought a business license and a certificate of zoning compliance for the property and the proposed business. (ECF No. 6–1 at 1–2.) Plaintiff's application for zoning compliance was denied on the grounds that Plaintiff MJJG Restaurant was to be an adult cabaret which did not meet the location requirements as set forth in Section 526. (ECF No. 6–1 at 2.) Plaintiffs contend that the denial of the request for the issuance of a certificate of zoning compliance is tantamount to a prior restraint on protected expression and was improperly

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based on the Horry County Planning and Zoning Department's investigation of another night club operated by Plaintiff MJJG Restaurant's principal, also known as the Gold Club (hereinafter “Gold Club I”) which was determined to be operating as an adult cabaret. (ECF No. 6–1 at 2–3.) Plaintiffs maintain that the decision of the Horry County Board of Zoning Appeals prevents Plaintiffs from opening the proposed restaurant/night club which suppresses constitutionally protected speech that Plaintiffs intended to present. (ECF No. 6–1 at 3–4.) Plaintiffs seek injunctive relief in order to enjoin the enforcement of Section 526 against the prospective business such that Plaintiffs may present the desired speech. (ECF No. 6–1 at 4.) Defendants filed a response on May 31, 2013 challenging Plaintiffs' standing to challenge the ordinance. (ECF No. 23.)

On September 4, 2013, Plaintiffs moved for leave to file an amended and supplemental complaint adding a claim asserting Defendants continue to impose a prior restraint on Plaintiffs MJJG Restaurant and Restaurant Row by not granting a second application for a certificate of zoning compliance submitted on August 5, 2013. (ECF No. 36.) Additionally, Plaintiffs added federal claims arising from the enactment of two Horry County Ordinances on September 3, 2013, Ordinances 29–13 and 30–13, and also added RT Entertainment LLC, d/b/a The Gold Club (“RT Entertainment”), as a new party-plaintiff impacted by the two ordinances. (ECF No. 36 at 1.) Plaintiffs contend that these ordinances redefine what constitutes an adult cabaret in Horry County in an attempt to capture the erotic performances presented at certain nightclubs in Horry County, including a pre-existing Gold Club adult entertainment establishment operating at 2254 Jason Boulevard. (ECF No. 36–1.) On the same day, Plaintiff filed a motion for a temporary restraining order (“TRO”) and preliminary injunction seeking to enjoin Defendants, their officers, agents, servants, employees, and attorneys, from enforcing Horry County Ordinances 29–13 and 30–13, adopted on September 3, 2013. (ECF No. 37.) Defendants filed a response in opposition to Plaintiffs' motion on September 6, 2013. (ECF No. 41.) On September 6, 2013, this Court heard arguments on Plaintiffs' motion for a temporary restraining order only. (ECF No. 43.) The Court issued an order denying Plaintiffs' motion for a temporary restraining order on September 9, 2013 finding that Plaintiffs failed to make a clear showing based on the applicable factors as required for the issuance of a temporary restraining order. (ECF No. 45.)

Plaintiffs filed an unopposed motion for leave to file a second amended complaint on October 3, 2013, adding a number of factual allegations to support the constitutional claims and also adding an additional pendent state law claim for a declaration that Plaintiff RT Entertainment is a grandfathered use at its current location. (ECF No. 46.) On January 9, 2014, this Court held a hearing on Plaintiffs' two motions for preliminary injunctions and heard live testimony and arguments from counsel concerning the requested relief.¹

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(ECF No. 50, 52, 58.) Additionally, the Court directed that the record be left open to allow the parties to conduct depositions, engage in additional discovery, and to submit post-hearing briefs. (ECF No. 58, 67, 71.) At this juncture, these matters have been fully briefed and are ripe for adjudication.

STANDARD OF REVIEW

Rule 65 of the Federal Rules of Civil Procedure governs the issuances of injunctions and restraining orders. Both the TRO and preliminary injunctions are “extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir.2001). In order to obtain a preliminary injunction, a plaintiff must demonstrate: “(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 19–20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; The Real Truth About Obama, Inc. v. Federal Election Comm'n, 575 F.3d 342, 346–47 (4th Cir.2009), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977), vacated on other grounds, 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010), reinstated in relevant part on remand, 607 F.3d 355 (4th Cir.2010) (per curiam). The substantive standards for granting a request for a temporary restraining order and entering a preliminary injunction are the same. See, e.g., Virginia v. Kelly, 29 F.3d 145, 147 (4th Cir.1994) (applying preliminary injunction standard to a request for temporary restraining order). All four requirements must be satisfied. The Real Truth About Obama, Inc., 575 F.3d at 346. As the Fourth Circuit has explained, the Supreme Court requires “that the plaintiff make a clear showing that it will likely succeed on the merits at trial.” The Real Truth About Obama, Inc., 575 F.3d at 346 (internal citation omitted). Further, the Supreme Court in Winter emphasized the public interest requirement, i.e., requiring courts to “ ‘pay particular regard for the public consequences in employing the extraordinary remedy of injunction,’ ” Winter, 555 U.S. at 24, 129 S.Ct. 365 (quoting Weinberger v. Romero–Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) ).

ANALYSIS AND DISCUSSION

I. First Amendment Challenge to Horry County Ordinances

“As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear”—i.e., “abridging the freedom of speech.” U.S. Const. amend. I ; Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). “The Constitution protects not just ‘political and ideological speech,’ but also ‘live entertainment,’ including ‘nude dancing’ and other performances involving nudity or other sexual elements.” Carandola, Ltd. v. Bason, 303 F.3d 507, 511 (4th Cir.2002) (citing Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65–66, 101 S.Ct. 2176, 68...