Adult business loses fight against zoning law before S.C. high court

Tuesday, May 25, 1999

An adult business separated from an undeveloped residential district by a waterway still must relocate because it is too close to the residential area, the South Carolina Supreme Court recently ruled.

A Horry County ordinance, enacted in 1989, prohibits adult businesses from being located within 500 feet of a residential district. An adult entertainment business known as Thee DollHouse, which opened in 1988, technically violates the ordinance because it is located within 350 feet of an area zoned for housing.

City officials had granted businesses in existence before 1989 a six-year grace period to conform to the new zoning law. In 1994, zoning officials informed owners of Thee DollHouse that they would have to relocate the business on or before Jan. 1, 1995.

Instead of moving, the owners petitioned the zoning board for an exception — known as a variance — in part because of the natural barrier of the waterway and also because the residential district was taken up by a golf course rather than housing.

The zoning board refused to grant a variance, however. The owners appealed to a state trial court, which ruled that the board's denial of the variance request was “arbitrary and clearly erroneous in light of the lack of any residence on the golf course and the natural barrier created by the Intercoastal Waterway.”

The owners also challenged the constitutionality of the ordinance, contending that it violated their First Amendment free-expression rights.

On appeal, the South Carolina Court of Appeals reversed the trial court's decision in 1997, ruling that the owners of the adult business failed to prove the hardship necessary to qualify for a variance.

On further appeal, the South Carolina Supreme Court affirmed the lower appeals court on May 17 in Restaurant Row Associates v. Horry County, finding that the business “failed to prove unnecessary hardship.”

The owners of Thee DollHouse had argued that they should not be forced to relocate because their business did not create any negative secondary effects, such as decreased property values and increased crime.

They contended that relocation would cause a temporary loss of their First Amendment freedoms and would also create undue financial hardship.

However, the South Carolina high court ruled that “financial hardship does not automatically constitute unnecessary hardship.”

The state high court also noted that the ordinance was constitutional and that it conformed to U.S. Supreme Court rulings in Young v. American Mini Theatres, Inc. (1976) and City of Renton v Playtime Theatres, Inc. (1986). In these decisions, the court upheld adult-business zoning laws against First Amendment challenges by reasoning that the laws did not target the content of the expression at adult businesses but were designed to prevent harmful secondary effects allegedly caused by the businesses.

Similar to the ordinances upheld in Young and Renton, the Horry County ordinance is “not aimed at the content of the speech, but rather at the secondary effects of such businesses on the surrounding community,” the South Carolina Supreme Court wrote.

The state high court dismissed the argument that Thee DollHouse deserved a variance because it did not cause any negative secondary effects. “Local governments have the power to zone the location of adult businesses without any individualized showing that the businesses produce negative secondary effects,” the court wrote.

The South Carolina Supreme Court also dismissed the argument that the business was entitled to a variance because the waterway prevented even the possibility of negative secondary effects from arising.

However, the state high court noted that a bridge could be built in the future connecting the business to the as-yet-undeveloped residential district. “Zoning is not only concerned about present conditions, but focuses on the future as well,” the court wrote.

Luke Lirot, attorney for Thee DollHouse, called the decision “terrible.” “The South Carolina Supreme Court departed from well-established First Amendment precedent,” he said.

Lirot said that he would file a motion for a rehearing before the South Carolina Supreme Court and then, if necessary, “absolutely” would appeal the case to the U.S. Supreme Court.

Attorneys for Horry County were out of the office and unavailable for comment.