11 F. Supp. 3d 541
D.S.C.2014Background
- Plaintiffs challenged Section 526 of Horry County Zoning Code and Ordinances 29-13 and 30-13 as applied to an adult entertainment use; court denied preliminary injunctions.
- Plaintiffs sought to operate a restaurant/nightclub with dance performances under Gold Club II at Property held by Restaurant Row Waterway; zoning denial based on adult cabaret classification.
- Proceedings included a prior TRO denial, amendments to pleadings adding RT Entertainment as plaintiff, and two rounds of briefing on First Amendment challenges.
- Court analyzed whether zoning restrictions and licensing schemes constitute prior restraints, content-neutral time/place/manner regulations, or vague/overbroad definitions.
- Record contained evidence of adverse secondary effects and evidence from hearings and reports supporting county regulation; court found regulations are time/place/manner restrictions aimed at secondary effects.
- Court noted that Section 526 as repealed or redefined was not shown to violate First Amendment with sufficient likelihood of success for injunctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 526 and related ordinances were unconstitutional prior restraints | MJJG/Restaurant Row argue denial is a prior restraint on expression | County regulation is a reasonable time/place/manner restriction not a blanket ban | No likelihood of success; injunction denied |
| Whether Adult Cabaret definition is overbroad | Definition may capture legitimate conduct and be overbroad | Regulation narrower and targeted to secondary effects | No likelihood of success on facial overbreadth |
| Whether Adult Cabaret definition is vague | Terms like sexual stimulation/gratification are vague | Terms are specific and commonly understood | No likelihood of success on vagueness |
| Whether Ordinances 29-13 and 30-13 are content-neutral and pass intermediate scrutiny | Ordinances suppress speech and fail intermediate scrutiny | Regulations are content-neutral time/place/manner measures | No likelihood of success; injunction denied for second motion |
| Whether licensing provisions constitute unconstitutional prior restraint | License scheme prematurely censors speech | Licensing with objective criteria preserves status quo and allows prompt review | No likelihood of success; injunction denied for second motion |
Key Cases Cited
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. (1986)) (time/place/manner regulation admissible if serves substantial interest and leaves alternatives)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (U.S. (2002)) (content-neutral analysis for adult entertainment restrictions; Renton framework applied)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. (1989)) (narrow tailoring requirement for time/place/manner regulations)
- Young v. American Mini Theatres, Inc., 427 U.S. 50 (U.S. (1976)) (context for treating conduct-based restrictions as content-neutral in some cases)
- Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. (2010)) (evidence controlling governmental policy on secondary effects is presumptively reasonable)
- The Real Truth About Obama, Inc. v. Federal Election Comm’n, 575 F.3d 342 (4th Cir. 2009) (clear showing required to succeed on merits for preliminary injunctions)
- Mom N Pops, Inc. v. City of Charlotte, 162 F.3d 1155 (4th Cir. 1998) (facial challenges to adult-entertainment definitions require substantial overbreadth)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (U.S. (1990)) (licensing schemes may be constitutional if non-discretionary and promptly reviewable)
- Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 2010) (supports deference to regulatory evidence of secondary effects)