Video store wins zoning battle with Columbia, S.C., city officials

Tuesday, May 2, 2000

Columbia, S.C., city officials cannot regulate a video rental store under a zoning ordinance for sexually oriented businesses because the city cannot show that sale of adult movies is a “principal business purpose” of the store, the state’s highest court has ruled.

City officials sought to classify Pic-A-Flick as an adult video store after it advertised a sale on adult movies in the newspaper. However, Pic-A-Flick contended that only 5% of its stock was devoted to adult films.

Under the city’s zoning ordinance, only businesses whose “principal business purpose” is the sale of sexually explicit materials can be zoned as adult businesses. The ordinance provides that adult businesses obtain a permit and meet certain zoning requirements.

The city sued the video store in 1998, but a trial judge issued an order against the city, having determined that Pic-A-Flick was not an adult business because:

  • The city could not define “principal business purpose.”
  • The store showed that only a minimal portion of its business was devoted to the sale of adult films.
  • The city failed to show that Pic-A-Flick caused any adverse secondary effects normally assumed to be associated with adult businesses.

On appeal, the South Carolina Supreme Court affirmed the lower court’s ruling in City of Columbia v. Pic-A-Flick Video, Inc. “Our United States Supreme Court has held that businesses providing non-obscene, sexually explicit material are entitled to protection by the First and Fourteenth Amendments,” the court wrote in its April 24 decision.

The state high court did side with the city on one aspect of its appeal. The high court ruled that “municipalities do not have to show negative secondary effects in order to enforce adult zoning provisions.”

However, the high court affirmed the lower court’s ruling because it agreed that the ordinance’s failure to define “principal business portion” rendered it unconstitutional.

“Here Pic-A-Flick cannot rely on a lack of secondary effects evidence to argue that they are not a sexually-oriented business,” the court wrote. “However, the trial court’s error is harmless in that it correctly found that the ordinance did not provide a definition for ‘a principal business purpose’ and the City zoning administrator could not tell the court how it enforced that provision of the ordinance.”

The high court noted that at the trial court hearing the city zoning administrator admitted under cross-examination that under city ordinances if a business sold one adult video, it could be classified as an adult video store.

“If there isn’t a definition of ‘principal business purpose’ that the City can articulate to the trial court, the city cannot argue that businesses such as Pic-A-Flick have as a ‘principal business purpose’ the retail of the covered material,” the high court concluded.

Calls to the city’s attorney office were not returned. The attorney for the video store was out of town and unavailable for comment.