MJJG Restaurant LLC et al v. Horry County South Carolina et al

Filing 79

OPINION AND ORDER: This Court concludes that a preliminary injunction as requested by Plaintiffs should not be granted. Accordingly, Plaintiffs' Motion for a Preliminary Injunction (ECF No. 37 ) is also DENIED. Signed by Honorable Mary G Lewis on 3/28/2014.(prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
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
)
)
)
)
)
)
OPINION AND ORDER
)
)
)
)
)
)
)

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 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

-2-

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

-3-

arguments from counsel concerning the requested relief.1 (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 (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, 130 S.Ct. 2371 (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

1

The parties filed a joint motion to reschedule a preliminary injunction hearing scheduled to allow
the Court to hear both of Plaintiffs’ pending preliminary motions at the same time. As Plaintiffs did not
withdraw their first motion regarding Section 526, but instead expressly asked this Court to consider it along
with a second motion regarding Ordinances 29-13 and 30-13, this Court addresses both motions fully in the
instant order. Although it may be that the initial request for injunctive relief has been rendered moot by the
repeal of Section 526, the Court’s review of the issues appears to have some bearing on one of Plaintiff’s
primary arguments.

-4-

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 (quoting Weinberger
v. Romero–Barcelo, 456 U.S. 305, 312 (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 (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 (1981)); see also
Reno v. ACLU, 521 U.S. 844, 874 (1997) (“In evaluating the free speech rights of adults, we have
made it perfectly clear that sexual expression which is indecent but not obscene is protected by the
First Amendment.” (internal quotation marks and citation omitted)); FW/PBS, Inc. v. City of Dallas,
493 U.S. 215, 224 (1990) (collecting First Amendment cases concerning restrictions on adult
bookstores, adult live theater performances, motion picture theaters, and nude dancing); Davenport
v. City of Alexandria, Va., 710 F.2d 148, n.6 (4th Cir.1983)(“Live entertainment is protected

-5-

speech.”).
Still,“being ‘in a state of nudity’ is not an inherently expressive condition;” nude erotic
dancing is “expressive conduct,” although the Court believes that it “falls only within the outer
ambit of the First Amendment’s protection.” City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000).
Accordingly, such “[e]xpressive conduct enjoys less protection than does pure speech and
restrictions on its exercise are more likely to be constitutionally permissible.” Legend Night Club
v. Miller, 637 F.3d 291, 300 (4th Cir. 2011)(quoting Steakhouse, Inc. v. City of Raleigh, N.C., 166
F.3d 634, 637 (4th Cir. 1999)). In the context of a First Amendment analysis, the level of scrutiny
a court applies when considering a regulation of expressive conduct depends on whether the
regulation is content-based or content-neutral. The inquiry takes into account the purpose for which
the regulation was adopted. See Carandola, Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002). Thus,
“[i]f the regulation was adopted to burden disfavored viewpoints or modes of expression, a court
applies strict scrutiny.” Carandola, 303 F.3d at 512. “If, by contrast, the regulation was adopted for
a purpose unrelated to the suppression of expression—e.g., to regulate conduct, or the time, place,
and manner in which expression may take place—a court must apply a less demanding intermediate
scrutiny.” Id. at 512-513. In the latter context, the ordinance is deemed content-neutral because it
is aimed not at the content of the expression but at the secondary effects “on the surrounding
community, namely, . . . crime rates, property values, and the quality of the city’s neighborhoods.”
See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 (2002).
In Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976), the Supreme Court
recognized that regulating this type of expressive conduct based on content may be necessary to
protect other legitimate interests and treated the ordinance in question as if it were content-neutral

-6-

because the speech is less than fully protected. See also City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425 (2002) (finding that because the ordinance did not ban adult theaters all together (but
merely required that they be distanced from certain locations) it should be deemed content- neutral
and properly analyzed as a time, place and manner regulation); Richland Bookmart, Inc. v. Nichols,
137 F.3d 435 (6th Cir. 1998) (“The Court did not try to maintain that the ordinance was, in fact,
content-neutral; it stated only that it might be treated as if it were content-neutral because, like
commercial speech, it is less than fully protected.”) These “so-called ‘content-neutral’ time, place,
and manner regulations are acceptable so long as they are designed to serve a substantial
governmental interest and do not unreasonably limit alternative avenues of communication.” City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). Additionally, the regulating of the
time, place, and manner of the protected expression must be narrowly tailored to achieve the
government’s interest. Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989). To summarize
the applicable analysis which consists of three steps: first, the court must determine whether the
regulation constitutes an outright ban of a particular sexually oriented business or only restricts the
manner in which it may operate, i.e., a time, place and manner regulation; second, the court must
determine whether the ordinance is content-based or content-neutral; and third, the court must
determine whether the regulation is designed to serve a substantial government interest, whether it
is narrowly tailored to achieve that interest, and whether it unreasonably limits alternative avenues
of communication. See Alameda Books, Inc., 535 U.S. at 434 (plurality) (describing Renton’s
three-step analysis); see also Daytona Grand, Inc. v. City of Daytona Beach, Fla., 490 F.3d 860, 870
(11th Cir.2007) (noting that time, place and manner regulations are evaluated under the three-part
test established by the Supreme court in Renton).

-7-

II.

Relevant Horry County Ordinances
1. Examination of Section 526 of the Horry County Zoning Code
Chapter 526 of the Horry County Zoning Code governs the location of “adult entertainment

establishments” in the unincorporated areas of Horry County Section 526.1 provides a classification
of such establishments and Section 526.2 explains where such establishments can locate: in
Highway Commercial Districts, as well as in Heavy and Light Industrial Districts subject to several
conditions. In relevant part, adult entertainment must be 2,000 feet from certain residential districts
and structures in any zoning district, more than 2,000 feet from any house of worship, day care
center, public or private elementary or secondary education school, public park, public library,
cemetery, or any motion picture establishment which shows G or PG rated movies to the general
public on a regular basis, and more than 2,500 feet from another adult entertainment business. (ECF
No. 48-1 at 1.)
Section 526.3 of the zoning coded defines an “adult cabaret” as
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.
(ECF No. 48-1 at 5.) The terms “specified sexual activities” and “specified anatomical areas” are
also defined in the zoning code. (ECF No. 48-1 at 6.)
Specified anatomical areas:
(a)

Less than completely and opaquely covered human genitals, pubic region, buttocks,
anus, or female breasts below a point immediately above the top of the areolae; or

(b)

Human male genitals in a discernibly turgid state even if completely and
-8-

opaquely covered.
Specified sexual activity:
(a)

Human genitals in a state of sexual stimulation or arousal;

(b)

Acts of human masturbation, sexual intercourse or sodomy;

(c)
Fondling or other erotic touchings of human genitals, pubic regions, buttocks
or female breasts;
(d)

Flagellation or torture in the context of a sexual relationship;

(e)

Masochism, erotic or sexually oriented torture, beating or the infliction of
pain; or

(f)

Erotic touching, fondling or other such contact with an animal by a human
being.

(ECF No. 48-1 at 6.)
2. Examination of Ordinance 29-13
Ordinance 29-13 amends Chapter 12.5 of the Horry County Code to add a new article to
establish licensing requirements and regulations for adult entertainment establishments. (ECF No.
48-2 at 1.) The preamble acknowledges that adult entertainment establishments are a category of
establishments that have “deleterious secondary effects” which the County intends to minimize and
control in the best interest of its citizens. (ECF No. 48-2 at 1.) The Ordinance is thus, intended “to
regulate such businesses as adult entertainment establishments through a narrowly tailored ordinance
designed to serve the substantial government interest in preventing the negative secondary effects of
adult entertainment establishments” without suppressing any protected speech activities. (ECF No.
48-2 at 2.) The Ordinance’s stated purpose is supported by “evidence of the adverse secondary
effects of adult uses presented in hearings and in reports made to the County Council, and on
findings, interpretations ,and narrowing constructions” in several relevant federal and South Carolina
-9-

cases, as well as various reports concerning secondary effects occurring in and around adult
entertainment establishments. (ECF No. 48-2 at 4-5.) “Adult Cabaret” is defined in Section 12.5-142
to mean “a nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment that
regularly features live conduct characterized by semi-nudity.”

(ECF No. 48-2 at 7.)

An

establishment cannot avoid classification as an adult cabaret by offering or featuring nudity in the
alternative. (ECF No. 48-2 at 7.) The term “nudity” is also defined meaning the “showing of the
human male or female genitals, pubic area, vulva, or anus with less than a fully opaque covering, or
the showing of the female breast with less than a fully opaque covering of any part of the nipple or
areola.” (ECF No. 48-2 at 8.) “Semi-Nude or Semi-Nudity” means the “showing of the female breast
below a horizontal line across the top of the areola and extending across the width of the breast at that
point . . . [to] include the lower portion of the human female breast, but . . . not include any portion
of the cleavage of the human female breast exhibited by a bikini, dress, blouse, shirt, leotard, or
similar wearing apparel provided the areola is not exposed in whole or in part.” (ECF No.48-2 at 9.)
The Ordinance explains the requirements and application/issuance process for an “adult
entertainment establishment license” and “adult entertainment establishment employee license,” as
well as fees and inspection requirements. (ECF No. 48-2 at 11-15.) Also outlined are procedures and
standards on hearings related to the licensing process and the transfer of licenses, hours of operation
(“no adult entertainment establishment shall be or remain open for business between 12:00 midnight
and 6:00 a.m. on any day”), and signage and lighting requirements. (ECF No. 48-2 at 17-20.)
Pursuant to Section 12.5-156, all pre-existing adult entertainment establishments lawfully operating
in Horry County and all adult entertainment establishment employees are to be granted a de facto
temporary license to continue operation or employment for a period of 90 days following the

-10-

effective date of the ordinance. (ECF No. 48-2 at 21.)
Finally, Section 12.6-157 sets forth prohibited conduct and limitations on spacing (semi-nude
employee must remain at least six feet from all patrons on a stage at least eighteen inches from the
floor in a room of at least six hundred square feet), touching (no employee who appears semi-nude
in an adult entertainment establishment shall knowingly or intentionally touch a customer or the
clothing of a customer on premises and vice versa), and room occupation (no operator of an adult
entertainment establishment shall knowingly or recklessly allow a room in the adult entertainment
establishment to be simultaneously occupied by a patron and a semi-nude employee unless the
operator is present in the room), and signage (a sign summarizing some of the provisions of the
ordinance to be posted near the entrance of the establishment in such a manner as to be clearly visible
to patrons upon entry). (ECF No. 48-2 at 21-22.)
3. Examination of Ordinance 30-13
Ordinance 30-13 amends Section 526 of the Zoning Ordinance of Horry County. (ECF No.
48-3.) The preamble acknowledges that adult entertainment establishments are a category of
establishments that have “deleterious secondary effects” which the County intends to minimize and
control in the best interest of its citizens. (ECF No. 48-3 at 1.) The Ordinance is thus, intended “to
regulate such businesses as adult entertainment establishments through a narrowly tailored ordinance
designed to serve the substantial government interest in preventing the negative secondary effects of
adult entertainment establishments” without suppressing any protected speech activities. (ECF No.
48-3 at 2.) To that end, Horry County amended Section 526 in its entirety. (ECF No. 48-3 at 2.) The
Ordinance’s stated purpose is supported by “evidence of the adverse secondary effects of adult uses
presented in hearings and in reports made to the County Council, and on findings, interpretations, and

-11-

narrowing constructions” in several relevant federal and South Carolina cases, as well as various
reports concerning secondary effects occurring in and around adult entertainment establishments.
(ECF No. 48-3 at 3-5.)
“Adult Cabaret” is defined in Section 526.2 to mean “a nightclub, bar, juice bar, restaurant,
bottle club, or similar commercial establishment that regularly features live conduct characterized
by semi-nudity.” (ECF No. 48-3 at 6.) Further, an establishment cannot avoid classification as an
adult cabaret by offering or featuring nudity in the alternative. (ECF No. 48-3 at 6.) The term
“nudity” is also defined meaning the “showing of the human male or female genitals, pubic area,
vulva, or anus with less than a fully opaque covering, or the showing of the female breast with less
than a fully opaque covering of any part of the nipple or areola.” (ECF No. 48-3 at 7.) “Semi-Nude
or Semi-Nudity” means the “showing of the female breast below a horizontal line across the top of
the areola and extending across the width of the breast at that point . . . [to] include the lower portion
of the human female breast, but . . . not include any portion of the cleavage of the human female
breast exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the
areola is not exposed in whole or in part.” (ECF No.48-3 at 7.)
Section 526.3 sets out the applicable location provisions—adult entertainment establishments
are permitted in the “Highway Commercial, Limited Industrial, and Heavy Industrial” zones provided
that they are not located within 1,500 feet of a residential zoning district, residential structure, house
of worship, day care center, public or private elementary or secondary education school, public park,
public library, cemetery, or any motion picture establishment which shows G or PG rated movies to
the general public on a regular basis, and within 750 feet of any other adult entertainment
establishment. (ECF No. 48-3 at 8-9.)

-12-

III.

Motion for Preliminary Injunction by Plaintiffs MJJG Restaurant LLC and Restaurant Row
Waterway LLC (ECF No. 6)
Based on the record, the Court finds that Plaintiffs have not clearly shown that they are likely

to succeed on the merits, nor have they shown that they are likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of the equities tips in their favor, and that an injunction
is in the public interest.
1. Substantial Likelihood that Plaintiff will Succeed on the Merits
Plaintiffs MJJG Restaurant LLC and Restaurant Row Waterway LLC argue that Defendants’
refusal to issue a certificate of zoning compliance based on the content of dance performances that
Plaintiffs might present in the future constitutes an unconstitutional prior restraint on expression.
(ECF No. 6-1 at 5.) Plaintiffs also argue that the definition of “adult cabaret” in Section 526 is
unconstitutionally overbroad in that it operates to “ensnare” constitutionally protected activity or
otherwise legitimate conduct that has no connection to the sort of adverse secondary effects that
would justify content-neutral restrictions on adult expression. (ECF No. 6-1 at 9, 15.) Plaintiffs
contend that the definition of “adult cabaret” is unconstitutionally vague in that the ordinance fails
to give notice to citizens as to what is prohibited conduct and does not ensure fair enforcement,
particularly because of several key terms in the definition are undefined. (ECF No. 6-1 at 16-19.)
In sum, Plaintiffs contend that they are entitled to a preliminary injunction because Horry County’s
decision to deny Plaintiffs’ application for a certificate of zoning compliance imposed a prior
restraint, and because the Section 526 is facially overbroad and vague.
Defendants argue that Plaintiffs misapply the prior restraint label and that any argument about
Horry County’s Board of Zoning Appeals’s decision fails because Plaintiffs’ intended use is within
the scope of the adult entertainment definitions in the zoning ordinance. (ECF No. 23 at 2.)
-13-

Similarly, Defendants argue that if Plaintiffs’ intended use falls within the scope of the adult
entertainment definitions, they lacks standing to challenge the ordinances as facially vague and
overbroad under the exception to those doctrines recognized in Young v. American Mini Theatres,
Inc., 427 U.S. 50, 59-61 (1976). Alternatively, if the intended use is outside of the scope of the adult
entertainment zoning regulations, Defendants contend that although Plaintiffs could challenge the
application of the zoning ordinances to its intended operation, Plaintiffs would lack standing to bring
facial challenges to the ordinance. (ECF No. 23 at 2.)
Based in part on evidence and documentation concerning Gold Club I and its manner of
operation as well as information provided on the business license application submitted in
conjunction with Gold Club II, Horry County Planning and Zoning staff concluded that Plaintiffs
MJJG Restaurant LLC and Restaurant Row Waterway LLC’s intended operation was as an adult
entertainment establishment which was not allowed at the proposed location and denied the
application. (ECF No. 23-1 at 3-7.) The County’s proceedings, as it relates to the zoning compliance
process and Plaintiffs MJJG Restaurant LLC and Restaurant Row Waterway LLC is the subject of
the first motion for preliminary injunction filed in this case. (ECF No. 6.)
A. Denial of Certificate of Zoning Compliance as a Prior Restraint on Expression.
Ordinarily, the government would bear the burden of demonstrating the constitutionality of
the ordinances but here, where a plaintiff is seeking a preliminary injunction, the burden shifts to the
plaintiff to prove that it is likely to succeed on the merits. See Winter, 555 U.S. at 20. “Because a
preliminary injunction affords, on a temporary basis, the relief that can be granted permanently after
trial, the party seeking the preliminary injunction must demonstrate by ‘a clear showing’ that, among
other things, it is likely to succeed on the merits at trial.” Real Truth, 575 F.3d at 345 (citing Winter,

-14-

555 U.S. at 22). This requirement is far stricter than the requirement that a plaintiff must demonstrate
only a “grave or serious question for litigation.” Id. at 347. As a first point, Plaintiffs argue that
Defendants’ denial of a certificate of zoning compliance constitutes an unconstitutional prior restraint
on expression in violation of the First Amendment.
The zoning compliance process at issue here is not properly analyzed as a prior restraint.
Concerning a similar “prior restraint” challenge relative to zoning ordinances impacting an adult
movie theater, the Supreme Court indicated that “[t]he mere fact that the commercial exploitation
of material protected by the First Amendment is subject to zoning and other licensing requirements
is not a sufficient reason for invalidating these ordinances” as a prior restraint on free speech. Young,
427 U.S. at 62; see also Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372, 388 (W.D.N.C.
Aug. 22, 1997), aff’d, 162 F.3d 1155 (4th Cir.1998) (unpublished opinion). (“A zoning ordinance per
se is not a prior restraint. Nor does taking reasonable steps to gather the necessary information to
effect a zoning ordinance which is otherwise a valid time/place/manner restriction render it a prior
restraint.”); Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery Cnty., Md., 256 F. Supp. 2d
385, 400 (D. Md. Mar. 28, 2003)(“Zoning restrictions, such as the one at issue here, are subject
instead to a time, place, and manner restriction analysis . . . . ”). In fact, as Defendants highlight, the
Supreme Court has enumerated “established exceptions” to the prior restraint doctrine to include
when “rejection of the application [is] based on any regulation of time place, or manner related to the
nature of the facility or applications from other users.” See Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 555-556 (1975); Christy v. Randlett, 932 F.2d 502 (6th Cir.1991)(noting that the
Supreme Court enumerated established exceptions to the prior restraint doctrine). Here, because the
zoning ordinance and the review process does not act as a blanket prohibition, but instead considered

-15-

the time, place, and manner of the proposed facility, the exception applies and the zoning and
licensing scheme is not properly subject to analysis as a prior restraint. See Mom N Pops, Inc. v. City
of Charlotte, 979 F. Supp. at 389. Plaintiffs are not entitled to injunctive relief on this ground.
B. Definition of Adult Cabaret as Facially Overbroad
Defendants maintain that Plaintiffs MJJG Restaurant and Restaurant Row lack standing to
bring a facial challenge as it relates to the definition of “Adult Cabaret” in Section 526. (ECF No.
23 at 10.) Defendants highlight as the key issue whether Plaintiffs intend to come within the scope
of the regulation. (ECF No. 23 at 11.) Defendants argue that Plaintiffs lack standing to challenge
the ordinance based on vagueness or overbreadth based on an exception first set forth in American
Mini Theatres and applied by the Fourth Circuit in Mom N Pops— where an ordinance clearly
applied to the plaintiff, the plaintiff lacked standing to challenge the ordinance based on vagueness
or overbreadth. Mom N Pops, Inc. v. City of Charlotte, 162 F.3d 1155, at *6 (4th Cir. 1998). In other
words, Defendants argue that an establishment lacks standing to challenge a definition that clearly
applies to it as constitutionally overbroad. (ECF No. 23 at 12.) Alternatively, even assuming
Plaintiffs have standing to challenge the definition of “adult cabaret,” Defendants maintain that the
on-point cases from the Fourth Circuit and elsewhere establish that the definition is not
constitutionally overbroad. (ECF No. 23 at 12.)
Assuming without deciding that Plaintiffs have standing, this Court agrees that Plaintiffs
cannot satisfy the applicable burden required to obtain the relief sought—an injunction barring the
enforcement of Section 526 (defining the term “adult cabaret”). A plaintiff “must overcome a ‘heavy
burden’ to succeed on a facial challenge to legislation,” North Carolina Right to Life, Inc. v. Leake,
525 F.3d 274 (4th Cir. 2008), because facial invalidation is “strong medicine to be applied sparingly

-16-

and only as a last resort.” United Seniors Ass’n v. Social Sec. Admin., 423 F.3d 397, 406 (4th
Cir.2005) (internal quotation marks omitted). The Fourth Circuit has concluded that “a law should
not be invalidated for overbreadth unless it reaches a substantial number of impermissible
applications.” Giovanni Carandola, Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002)(internal
quotations marks and citations omitted). Thus, in order to prevail, a plaintiff must demonstrate that
the regulation’s overbreadth is “‘not only . . . real, but substantial as well, judged in relation to the
[challenged regulation’s] plainly legitimate sweep,’ and also that no ‘limiting construction’ or ‘partial
invalidation’ could ‘remove the seeming threat or deterrence to constitutionally protected
expression.’” Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).
Although Plaintiffs make a broad facial attack on the zoning ordinance, the regulation at issue
is far narrower than a regulation applicable to the general public—it concerns the location of “adult
entertainment establishments” in Horry County that regularly depict specified sexual activities or
specified anatomical areas. Plaintiffs have not shown that the potentially overbroad applications are
substantial—performances and conduct occurring outside of an adult cabaret as it is defined are
unaffected by the Ordinance, and those occurring in such an adult entertainment establishment
containing the sexual emphasis that defines an “adult cabaret” would be within the Ordinance’s
legitimate sweep. “[T]here must be a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not before the Court for it to be
facially challenged on overbreadth grounds.” Members of City Council v. Taxpayers for Vincent, 466
U.S. 789, 801 (1984). To succeed at this juncture, Plaintiffs must demonstrate, by a clear showing,
that they are likely to succeed on the merits of their claim that the Ordinance is facially
unconstitutional. Even in the unique First Amendment arena, the Court finds that Plaintiffs have

-17-

failed to meet this heavy burden.
C. Definition of Adult Cabaret as Facially Vague
Plaintiffs also challenge the definition of “adult cabaret” as unconstitutionally vague. (ECF
No. 6-1 at 16.) Defendants maintain that Plaintiffs MJJG Restaurant and Restaurant Row lack
standing to challenge the definition of “adult cabaret” on facial vagueness grounds, a claim they
otherwise argue fails on the merits. (ECF No. 23 at 14.) Assuming again, without deciding, that
Plaintiffs have standing to challenge the definition, this Court finds that Plaintiffs fail to meet their
burden to demonstrate a likelihood of success on the merits of their claim that the Ordinance is
unconstitutionally vague.
Specifically, Plaintiffs challenge several aspects of the definition of adult cabaret: 1) its initial
phrase—“An establishment whose principal business purpose is the presentation of live entertainment
which is intended to provide sexual stimulation or sexual gratification to its customers . . . .”
concerning what constitutes a “principal business purpose;” 2) the phrase “live entertainment which
is intended to provide sexual stimulation or sexual gratification to its customers,” because the terms
“sexual stimulation or sexual gratification,” are undefined; and 3) the phrase “Establishments that
do not provide adult entertainment more than twelve (12) times per calendar year shall not be defined
as an adult cabaret” because “adult entertainment” is not defined in the ordinance. (ECF No. 6-1 1820.) The Court concludes that Plaintiffs are not likely to succeeding in attacking the phrases and
definitions as unconstitutionally vague.
“‘A statute can be impermissibly vague for either of two independent reasons. First, if it fails
to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.’”

-18-

U.S. v. Lanning, 773 F.3d 476, 482 (4th Cir. 2013) (quoting Hill v. Colorado, 530 U.S. 703, 732
(2000)). The vagueness doctrine is particularly important in the First Amendment arena because
“[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the
boundaries of the forbidden areas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104,
109 (1972) (internal quotations marks omitted); see also Imaginary Images, Inc. v. Evans, 612 F.3d
736, 749 (4th Cir. 2010)(“In assessing a vagueness challenge, a court must ask whether the
government’s policy is ‘set out in terms that the ordinary person exercising ordinary common sense
can sufficiently understand and comply with.’” (internal citation omitted)). Still, “perfect clarity and
precise guidance have never been required even of regulations that restrict expressive activity.”
Ward, 491 U.S. at 794.
The Court concludes that the challenged phrases are sufficiently specific and precise to
provide people of ordinary intelligence a reasonable opportunity to understand what conduct is
prohibited. See Wag More Dogs, Ltd. Liability Corp. v. Cozart, 680 F.3d 359, 371 (4th Cir. 2012);
Imaginary Images, Inc., 612 F.3d at 750 (rejecting adult entertainment establishment’s vagueness
challenge as “wishful thinking” because it was clear what conduct the mixed beverage policy reached
and what the dancers did because the terms were matters of every day speech and of common usage).
As to the first point, the district court in Mom N Pops rejected a facial challenge to an adult
entertainment definition employing the “principal business purpose” limiting language and the same
outcome is warranted here. See Mom N Pops, 979 F. Supp. at 392 (acknowledging several cases
which have upheld similar language). Secondly, an ordinary person would know the meaning of the
terms “sexual stimulation or gratification.”

These terms have been found to be commonly

understood—and therefore constitutional—in several cases. See Ward v. County of Orange, 55 F.

-19-

Supp. 2d 1325, 1334 (M.D. Fla. 1999) (rejecting vagueness challenge to these same two terms), aff’d
in relevant part, remanded in part, 217 F.3d 1350, 1356 n.5 (11th Cir. 2000); see also Stansberry v.
Holmes, 613 F.2d 1285, 1290 (5th Cir.1980) (noting that such terms are not vague); SDJ, Inc. v. City
of Houston, 636 F. Supp. 1359, 1367 (S.D.Tex. Jun. 3, 1986) (same), aff’d, 837 F.2d 1268 (5th
Cir.1988). Finally, based on the case law and in the context of the entire ordinance and the
referenced introductory phrase, the term “adult entertainment” is not impermissibly vague. See also
U.S. v. Williams, 553 U.S. 285, 294 (2008) (“In context . . . meanings are narrowed by the
commonsense canon of noscitur a sociis—which counsels that a word is given more precise content
by the neighboring words with which it is associated.”) Accordingly, the Court finds it unlikely that
Plaintiffs will succeed on the merits of a vagueness claim of these phrases.
In sum, Plaintiffs have not established a likelihood of success on the merits of their asserted
prior restraint and facial overbreadth and vagueness challenges.
2.

Irreparable Harm in the Absence of Injunctive Relief

Plaintiffs argue that it will suffer irreparable harm if this Court does not enjoin the
enforcement of Chapter 526 against Plaintiffs. (ECF No. 6-1 at 20.) This, Court however, has
determined that Plaintiffs MJJG Restaurant and Restaurant Row are not likely to succeed on the
merits of their claims in the absence of a violation of free speech rights. Accordingly, Plaintiffs are
also not likely to suffer irreparable harm in the absence of preliminary relief. See Mom N Pops, 979
F. Supp. at 394 (holding that plaintiff had failed to show a loss of free speech rights, which was
necessary to justify preliminary injunction).
3.

Balancing of the Equities

As to this factor, Plaintiffs contend that it is inconceivable that the issuance of a preliminary

-20-

injunction will cause harm to any citizens or to Defendants because Plaintiffs only seek a certificate
of zoning compliance for a use permitted in the zoning district where Plaintiff Restaurant Row’s
property is located. (ECF No. 6-1 at 21.) The Court must disagree.
In upholding the zoning administrator’s determination and interpretation of the zoning
ordinance regarding an appeal for the Gold Club II, the Horry County Zoning Board of Appeals
expressly found that sexually oriented businesses are associated with numerous documented adverse
secondary impacts and noted that the County has a substantial interest in separating residential areas
from such negative impacts. (ECF No. 23-1 at 6.) To that end, the Horry County Zoning Board of
Appeals record in this case contains substantial evidence regarding the negative secondary effects
of adult/sexually oriented businesses (ECF Nos. 23-2 & 23-3) to include case law, various
investigative reports and surveys, land use studies, and articles regarding crime and illicit conduct
associated with adult entertainment businesses. The record thus suggests potential harm to
Defendants and others as outlined in the Board’s findings and the Court cannot conclude that
Plaintiffs prevail on this factor. See also Mom N Pops, 979 F. Supp. at 394-395 (“The likelihood of
harm to Defendants should such an injunction issue is in proportion to the likelihood of the dangers
articulated in the preamble of the adult zoning ordinance (lowered property values, increased crime
rates, blighting of neighborhoods, etc.)”)
4.

Injunctive Relief in the Public Interest

Finally, Plaintiffs argue that the last factor meriting injunctive relief is also satisfied because
it is in the public interest to uphold a constitutionally protected right. (ECF No. 6-1 at 21.) Because
Plaintiffs, however, have not shown a constitutional violation, preserving enforcement of the zoning
ordinance and scheme “is in the public interest, tending to mitigate or eliminate deleterious secondary

-21-

effects.” Mom N Pops, 979 F. Supp. at 395.
Having considered the factors as outlined above, this Court concludes that a preliminary
injunction as requested by Plaintiffs should not be granted. Accordingly, the Motion for Preliminary
Injunction by Plaintiffs MJJG Restaurant LLC and Restaurant Row Waterway LLC (ECF No. 6) is
DENIED.
IV.

Motion for a Preliminary Injunction by Plaintiffs MJJG Restaurant LLC, Restaurant Row
Waterway LLC and RT Entertainment, LLC d/b/a The Gold Club (ECF No. 37)
Based on the record, Plaintiffs have not clearly shown that they are likely to succeed on the

merits, nor have they shown that they are likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of the equities tips in their favor, and that an injunction is in the
public interest.
1.

Substantial Likelihood that Plaintiff will Succeed on the Merits

In their second motion for a preliminary injunction Plaintiffs MJJG Restaurant and Restaurant
Row challenge two newly enacted ordinances, Ordinances 29-13 and 30-13 as a prior restraint. (ECF
No.37 at 2.)

Additionally, new party-plaintiff RT Entertainment LLC, as operator of the

restaurant/night club known as The Gold Club (“The Gold Club I”), joins the lawsuit seeking to
enjoin the enforcement of these new ordinances such that it may continue its operations at its present
location. (ECF No. 37 at 1-2.) Plaintiff The Gold Club I contends that it has operated as a
restaurant/nightclub offering erotic entertainment to its patrons for the past eight years in such a
manner as to fall outside of the law’s coverage as to what constitutes an “adult cabaret.” (ECF No.
37-1 at 3.) More specifically, Plaintiff The Gold Club I asserts that it presented dance performances
by entertainers who appeared with opaque pasties covering the nipple and areola of their breasts and
Brazilian-cut bikinis to cover their bottoms in a manner it alleges was in good faith and consistent
-22-

with Horry County’s interpretation of “adult cabaret.” (ECF No. 37-1 at 3.) Plaintiff The Gold Club
I argues that it operated for several years without incident and without any claim that it was not in
compliance. (ECF No. 37-1 at 3.) Plaintiff The Gold Club I argues that Horry County introduced
and passed the two ordinances not only to prevent MJJG Restaurant from presenting dance
performances at its proposed location but also to prohibit The Gold Club I and other nightclubs in
Horry County from continuing to present erotic dance performances by redefining what constitutes
an “adult cabaret.” (ECF No. 37-1 at 4.)
Plaintiffs argue that the new ordinances are content-based restrictions designed to suppress
sexual speech which cannot pass strict scrutiny. (ECF No. 37-1 at 11.) As an alternative argument,
Plaintiff s assert that the ordinances cannot survive a constitutional challenge under the intermediate
scrutiny standard applicable to content-neutral laws. (ECF No. 37-1 at 14.) Specifically, Plaintiffs
maintain that the new laws fail to provide alternative avenues of communication, disproportionately
burden speech, are facially unconstitutional in that they impose a requirement of a license to present
expression without preserving the status quo, and allow for unconstitutional warrantless searches of
businesses. (ECF No. 37-1 at 16-28.) Further, Plaintiffs question Defendants’ asserted rationale in
seeking to address adverse secondary effects. (ECF No. 37-1 at 28-29.) Defendants’ response
emphasizes that the new ordinances merely preserve the status quo for previously lawful businesses
and that the evidence in the record shows that The Gold Club I was illegally operating as an “adult
cabaret” as the term was previously defined under the law. (ECF No. 41 at 1-3.)
A. New Ordinances are Content-Neutral Restrictions Subject to Intermediate Scrutiny
Plaintiffs argue that Ordinances 29-13 and 30-13 are content-based and must satisfy strict
scrutiny—a test Plaintiffs maintain the ordinances cannot meet. (ECF No. 37-1 at 14.) In the

-23-

alternative, in claiming that intermediate scrutiny is not entirely deferential, Plaintiffs contend that
even if the ordinances are evaluated under the standard for content-neutral laws, they fail to pass
constitutional muster. (ECF No. 37-1 at 14, 16.) As noted above, the relevant considerations are
whether the regulations are designed to serve a substantial government interest, i.e., adverse
secondary effects and whether the regulation operates in such a manner, i.e., narrowly tailored, so as
to leave open alternative avenues of communication. See Renton, 475 U.S. at 47.
In this Court’s view, these ordinances are properly analyzed as time, place, and manner
regulations. The ordinances in question do not ban adult entertainment altogether but instead aim
to control the secondary effects of such entertainment establishments on the community by restricting
when and where such businesses operate. See Independence News, Inc. v. City of Charlotte, 568 F.3d
148, 154 (4th Cir. 2009 ). Relevant here, the County has indicated its intent to regulate such
businesses as adult entertainment establishments through narrowly tailored ordinances designed to
serve the substantial government interest of preventing the negative secondary effects of adult
entertainment establishments. (ECF No. 48-2 at 2 & 48-3 at 2.) If the ordinance is a content-neutral
time, place, and manner regulation, then the ordinance is subject to intermediate scrutiny. Imaginary
Images, Inc., 612 F.3d at 742. Regulations that are “‘content neutral’ time, place, and manner
regulations are acceptable so long as they are designed to serve a substantial governmental interest
and do not unreasonably limit alternative avenues of communication.” Renton, 475 U.S. at 47. The
weight of the relevant and governing case law supports the conclusion that regulations that target the
secondary effects of sexually-oriented, adult businesses are treated as content-neutral and subject to
intermediate scrutiny. See Independence News, Inc., 568 F.3d at 151-155 (zoning ordinance designed
separate adult establishments from sensitive uses was properly deemed a content-neutral time, place

-24-

and manner regulation for the purposes of a First Amendment analysis in that it was aimed at
addressing the lowered property values, increased crime rates, and neighborhood blight rather than
the content of adult uses); D.G. Rest. Corp. v. City of Myrtle Beach, 953 F.2d 140, 146-148 (4th Cir.
1991) (directing the district court to dissolve the injunction entered prohibiting enforcement of a
nudity ordinance challenged by a nightclub restaurant business and further determining that the
ordinance was a constitutional content-neutral time, place, and manner restriction aimed at combating
secondary effects); McDoogal’s East, Inc. v. Cnty. Comm’rs of Caroline Cnty., 341 F. App’x 918,
924 (4th Cir. 2009)(unpublished opinion)(concluding that the county’s ordinances restricting the
location of adult-oriented businesses was a content -neutral time, place, and manner regulations, such
that an unsuccessful zoning applicant’s First Amendment challenge was subject to intermediate
scrutiny rather than strict scrutiny). Because Plaintiffs are seeking a preliminary injunction, Plaintiffs
must demonstrate a likelihood that they will succeed on the merits by showing that Defendants will
not be able to meet their burden that the zoning ordinances: 1) advance a substantial governmental
interest; 2) are narrowly tailored; or 3) provide adequate alternative avenues of communication.
Accordingly, the Court will further address Plaintiffs’ demonstration of a likelihood of success on
the merits based on the intermediate scrutiny considerations set forth by Plaintiffs in their alternative
argument.
B. Alternative Avenues of Communication
As part of their intermediate scrutiny arguments, Plaintiffs contend that Ordinance 30-13 fails
to provide alternative avenues for communication. (ECF No. 37-1 at 16.) Plaintiffs indicate that they
expect that the evidence will show that less than 1% of the land in Horry County is available for adult
uses once certain spacing restrictions are taken into account. (ECF No. 37-1 at 18.) Plaintiffs argue

-25-

that courts “have weighed available alternative sites against the total size of the municipality in
question [and] have routinely found ordinances which allow adult uses to operate on less than one
percent of the total available land in a city to provide an inadequate number of receptor sites as a
matter of law . . . .” (ECF No. 37-1 at 17.) Plaintiffs assert that the ordinance will eliminate adult
speech in Horry County unless enjoined. (ECF No. 37-1 at 18.) Defendants note that Ordinance
30-13 significantly relaxes the location restrictions for adult businesses, and argue that the evidence
will show more than ample parcels for Plaintiffs to open and operate adult establishments in Horry
County. (ECF No. 41 at 23.)
“Neither the Supreme Court nor the Fourth Circuit has completely refined the test from
Renton for determining whether particular sites are constitutionally available for adult entertainment
business relocation.” Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery Cnty., 256 F. Supp.
2d at 395–96. Thus, location regulations for adult businesses are constitutional so long as they do
not effectively deny adult businesses “a reasonable opportunity to open and operate.” Renton, 475
U.S. at 54. A First Amendment violation does not arise simply because businesses must “fend for
themselves in the real estate market, on an equal footing with other prospective purchasers and
lessees.” Id. “A plaintiff must show something greater than mere inconvenience or economic
undesirability.” McDoogal’s East, Inc., 341 F.App’x at 930. The Supreme Court has “never
suggested that the First Amendment compels the Government to ensure that adult theaters . . . will
be able to obtain sites at bargain prices.” Id. (citing Renton, 475 U.S. at 54); see also Daytona
Grand, Inc., 490 F.3d at 871 (“the economic feasibility of relocating to a site is not a First
Amendment concern.”). Additionally, “the Constitution does not mandate that any minimum
percentage of land be made available for certain types of speech.” Allno Enters., Inc. v. Baltimore

-26-

Cnty., Md., 10 F.App’x 197, 201 (4th Cir. 2001) ( internal citation and quotation marks omitted)
(unpublished opinion); see also Big Dipper Entm’t, LLC v. City of Warren, 641 F.3d 715, 718–19
(6th Cir. 2011) (the question of whether the plaintiff had a reasonable opportunity to open and operate
an adult business “does not turn on arbitrary percentages or formulas. Depending on the facts of the
case, of course, percentages or formulas can be relevant to the outcome; but that does not mean that
the same percentage or formula governs in every case. The First Amendment does not proscribe a
Uniform Zoning Code.”).
Renton makes clear that commercial viability is not an appropriate consideration. Renton, 475
U.S. at 53-54. For example, land deemed available for adult businesses in Renton included “‘acreage
in all stages of development from raw land to developed, industrial, warehouse, office, and shopping
space.’” Id. at 53 (internal citation omitted). A case from the Eleventh Circuit, David Vincent, Inc.
v. Broward County, Florida, 200 F.3d 1325 (11th Cir. 2000), cited favorably in this Circuit,
synthesizes the rulings from other circuits and provides a general guideline for answering questions
regarding how to determine the type of sites that should be considered available:
First, the economic feasibility of relocating to a site is not a First Amendment
concern. Second, the fact that some development is required before a site can
accommodate an adult business does not mean that the land is, per se, unavailable for
First Amendment purposes. The ideal lot is often not to be found. Examples of
impediments to the relocation of an adult business that may not be of a constitutional
magnitude include having to build a new facility instead of moving into an existing
building; having to clean up waste or landscape a site; bearing the costs of generally
applicable lighting, parking, or green space requirements; making due with less space
than one desired; or having to purchase a larger lot than one needs. Third, the First
Amendment is not concerned with restraints that are not imposed by the government
itself or the physical characteristics of the sites designated for adult use by the zoning
ordinance. It is of no import under Renton that the real estate market may be tight and
sites currently unavailable for sale or lease, or that property owners may be reluctant
to sell to an adult venue.
David Vincent, Inc., 200 F.3d at 1334–1335. As set forth in Allno Enterprises, Inc. v. Baltimore
-27-

County, Maryland, 10 F.App’x 197, 201 (4th Cir. 2001)(unpublished opinion), the relevant inquiry
is whether the ordinance allows the establishment “an adequate number of sites to which it can
relocate if it so chooses,” Allno Enter., Inc., 10 F.App’x at 201, keeping in mind that “the First
Amendment is not concerned with restraints that are not imposed by the government itself.” David
Vincent, 200 F.3d at 1335.
Accordingly, Plaintiffs’ concerns about “spacing and location restrictions,”resident fears,
public proclamations about limited location sites, and private deed restrictions (ECF No. 37-1 at 18)
simply have no constitutional significance. Allno Enter., Inc., 10 F.App’x at 202 (“A property is not
rendered ‘unavailable’ by the bald and unsupported conclusions of an adult business.”). Plaintiffs
contend that the new ordinance would likely leave less than 1% of the land in Horry County available
for adult uses. (ECF No. 37-1 at 18.) Even assuming Plaintiffs’ 1% figure is correct, this alone does
not demonstrate Plaintiffs’ likelihood of success on the merits as there is no minimum percentage of
land that must be made available to adult entertainment businesses, particularly without a basis to
evaluate specific circumstances. See Maages Auditorium v. Prince George’s Cnty., Md., No. 131722, 2014 WL 884009, *9 (D. Md. Mar. 5, 2014) (“Even assuming that the 0.05% figure is accurate,
that alone does not demonstrate Plaintiffs’ likelihood of success on the merits as there is no minimum
percentage of land that must be made available to adult entertainment businesses.”)
In this case, at the preliminary injunction hearing and on brief, Defendants assert that the
ordinances leave more than 79 sites, totaling approximately 416 acres, where adult establishments
may operate–many in prime commercial areas. (ECF No. 60; ECF No. 71 at 11.) Defendants have
put forth maps and other record evidence presenting multiple sites which meet the requirements of

-28-

the Ordinance and outlining locations of currently operating establishments.2 (Defs.’ Ex. D-G);
McDoogal’s East, Inc., 341 Fed. Appx. at 930 (“Although in this case the record does not reflect the
exact percentage of available land open to [Adult Oriented Businesses] the County demonstrated
multiple sites which met the requirements of the Moratorium and the Ordinance.”) In conclusion,
Plaintiffs have not met their burden of demonstrating a likelihood of success on the merits on this
aspect of the analysis.
C. Disproportionate Burden on Speech
Next, Plaintiffs argue that the ordinances are an attempt to reduce secondary effects by
reducing speech. (ECF No. 37-1 at 20.) Plaintiffs argue that the government must demonstrate that
it has adopted a regulation that reduces secondary effects without working a reduction in the overall
availability of sexual expression. (ECF No. 37-1 at 20.) Plaintiffs argue that these ordinances overly
restrict speech in that they: 1) fail to provide alternative locations for adult businesses; 2) limit the
hours during which the establishments may operate; 3) prohibit entertainers from performing while
seminude, unless they are at least 6 feet from any patron and on a stage that is at least 18 inches high
and in a room that is at least 600 square feet, further prohibit touching of a patron/employee or his
or her clothing, tipping, and limit customers and entertainers’ ability to be in a room alone; and 4)
impose a burden in requiring businesses and employees to be licensed. (ECF No. 37-1 at 20-21.)
Plaintiffs favor their interpretation of Justice Kennedy’s concurrence in City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 425, 444 (2002) in suggesting that these restrictions, collectively,
unreasonably limit actual protected speech in their effort to reduce secondary effects. (ECF No. 37-1

2

Plaintiffs do not directly challenge the findings or the sufficiency of the number of sites—instead
Plaintiffs argue that the evidence of adequate relocation sites is irrelevant. (ECF No. 67 at 4-5, 18-19.)

-29-

at 19-20.)
Plaintiffs’ argument must be rejected and Plaintiffs’ reliance on Justice Kennedy’s
concurrence in Alameda Books (explaining the rationale for applying intermediate scrutiny), for
support for this proposition is unpersuasive.3 As a practical matter, Plaintiffs’ proportionality
argument is in fact an allegation that Horry County cannot demonstrate that their regulations are
narrowly tailored. “[A] regulation of the time, place, or manner of protected speech must be narrowly
tailored to serve the government’s legitimate, content-neutral interests but . . . it need not be the least
restrictive or least intrusive means of doing so.” Ward, 491 U.S. at 798. The requirement of narrow
tailoring is satisfied as long as the regulation promotes a substantial government interest that would
be achieved in a less effective manner if the regulation was not in place. Id. at 798-99. The “standard
does not mean that a time, place, or manner regulation may burden substantially more speech than
is necessary to further the government’s legitimate interests. Government may not regulate
expression in such a manner that a substantial portion of the burden on speech does not serve to
advance its goals.” Id. at 799. Accordingly, Justice Kennedy’s opinion cautions that a municipality
“must advance some basis to show that its regulation has the purpose and effect of suppressing
secondary effects, while leaving the quantity and accessibility of speech substantially intact.”
Alameda Books, 535 U.S. at 449.4

3

It is within the context of identifying “the claim a city must make in order to justify a content-based
zoning ordinance” that Justice Kennedy stated that “[t]he rationale for the ordinance must be that it will
suppress secondary effects—and not by suppressing speech.” City of Los Angeles v. Alameda Books, Inc.,
535 U.S. 425, 449-50 (2002).
4

At the preliminary injunction hearing and in their post-hearing brief, Plaintiffs focused their
arguments on two issues: 1) Plaintiffs asserted that the effect of Ordinances 29-13 and 30-13 was to
completely eliminate live adult entertainment in unincorporated Horry County, contrary to Justice Kennedy’s
opinion in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); and 2) because Horry County’s

-30-

At the preliminary injunction stage, Plaintiffs have not demonstrated that the government will
fail to establish its burden that the zoning ordinances are narrowly tailored. Of note, ordinances
outlining the sorts of regulations at issue in this case have been upheld across the country. See, e.g.,
LLEH, Inc. v. Wichita Cnty., Tex., 289 F.3d 358 (5th Cir. 2002) (upholding the constitutionally of
several regulations adopted by a county regarding sexually oriented businesses to include distance
requirements, under which such businesses could not be located within 1,500 feet of a church,
residence, school, or other listed establishments, or within one mile of a prison, operating
requirements, under which partially or totally nude performers could not be within six feet of patrons
and had to be on stages raised at least 18 inches above the floor, and design and layout requirements,
under which premises must be configured in such a manner as to give inspecting law enforcement
personnel an unobstructed view); Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., Fla.,
630 F.3d 1346 (11th Cir. 2011)(upholding constitutionality of ordinance that required semi-nude
employees to remain at least six feet from any patron or customer and on a stage at least 18 inches
from the floor and in a room of at least 1,000 square feet, prohibited employees from touching
customers or customers’ clothing, and restricted hours of operation); Entm’t Productions, Inc. v.
Shelby County, Tenn., 721 F.3d 729 (6th Cir. 2013)(ordinance that in part, requires all adult-oriented
establishments and their employees to obtain a license did not violate the First Amendment); Deja
Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville and Davidson Cty., 274 F.3d 377, 395 (6th

zoning law governing the location of adult cabarets in effect before the challenged laws were adopted was
unconstitutional, Plaintiffs are entitled to remain at their respective locations as lawful, prior non-conforming
uses. (ECF No. 67 at 1.) This second argument must also be rejected based on the Court’s conclusions
regarding certain aspects of the former (repealed) version of Section 526 which is the subject of Plaintiffs’
first motion for preliminary injunction. The unconstitutionality of that zoning law has not been established
such that Plaintiffs would be “grandfathered” as a non-conforming use nor is the designation of nonconforming use one to which Plaintiffs would automatically be entitled.

-31-

Cir. 2001) (considering sexually oriented business licensing provisions and no touch/buffer zone
provisions); Mitchell v. Comm’n on Adult Entm’t Establishments, 10 F.3d 123, 139 (3d Cir.1993)
(upholding an ordinance requiring sexually oriented businesses to be closed from 10:00 PM to 10:00
AM, Monday through Saturday, and requiring them to be closed all day on Sundays and holidays).
Additionally, Plaintiffs’ argument that the combined impact of the individual provisions has a
disproportionate impact on speech is also without merit. The Court agrees with the conclusion
reached by the Sixth Circuit in addressing a similar argument:“[g]iven the overwhelming weight of
precedent against their case, we asked Plaintiffs–Appellants at oral argument which specific
provisions of the Ordinance allegedly violated the First Amendment. Plaintiffs–Appellants could
offer no answer except to argue that the sum of the Ordinance’s parts placed such a significant burden
on speech as to violate the First Amendment, even though each individual provision is constitutional.
This argument is unavailing.” See Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 299 (6th
Cir. 2008).
D. License Application Process as a Prior Restraint on Expression
Plaintiffs also launch a prior restraint argument as it relates to the license application process
for adult entertainment businesses. (ECF No. 37-1 at 23-24.) Specifically, Plaintiffs argue that the
process fails to preserve the status quo in that The Gold Club I and other businesses that presented
erotic entertainment in Horry County must immediately and abruptly cease presenting their speech
because they “were outside of the definition of an ‘adult entertainment establishment’” and therefore
are not entitled to the temporary licenses provided for under the ordinances. (ECF No. 37-1 at 2425.) Defendants reject Plaintiffs’ “status quo”argument in maintaining that Horry County is not
required to give a temporary license to a business that was operating unlawfully under the prior law.

-32-

(ECF No. 41 at 26-27.) Defendants highlight the deposition testimony of RT Entertainment/ MJJG
Restaurant’s principal as well as affidavit and video evidence demonstrating that dancers often
exposed their breasts and buttocks and engaged in fondling and stimulation of these areas, thus, The
Gold Club I operated as an “adult cabaret” as the term was previously defined in the law. (ECF No.
23-1 at 15; ECF Nos. 71-1, 71-2, 71-3, 71-4; Defs.’ Ex.B (Rule 30 (B)(6) Deposition).
A licensing ordinance for sexually oriented businesses is not an unconstitutional prior restraint
as long as it 1) avoids unbridled discretion in the licensing decision maker; 2) places limits on the
time within which the decision maker must issue the license; and 3) provides for prompt judicial
review of an adverse decision. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225–28 (1990).
Here, the licensing ordinance 29-13 does not operate as an unconstitutional prior restraint. Ordinance
29-13 sets forth objective criteria and standards relevant to the issuance of licenses, including a 30day time period for issuance following the filing of a completed application (Section 12.5-144) and
provides for prompt judicial review of an intent to deny, suspend, or revoke a license (Section 12.5150).

Further, lawfully operating preexisting adult entertainment establishments are to be

immediately issued temporary licenses, thereby preserving legal operations and maintaining the status
quo. (ECF No. 48-2 at 13 & 21.) The status quo is also preserved during the appeals process. (ECF
No. 48-2 at 17.) For these reasons, the Court concludes that Horry County’s licensing ordinance does
not operate as an unconstitutional prior restraint. See generally City of Littleton v. Z.J. Gifts D–4,
LLC, 541 U.S. 774, 783 (2004), 777 & 783 (2004) (“[T]he ordinance at issue here does not seek to
censor material. And its licensing scheme applies reasonably objective, nondiscretionary criteria
unrelated to the content of the expressive materials that an adult business may sell or display.”)
E. Warrantless Search

-33-

Plaintiffs argue that Ordinance 29-13 violates Plaintiffs’ rights under the Fourth and Fourteenth
Amendments in that the provision allows the Chief of Police to inspect portions of the adult
entertainment establishment from time to time to ensure compliance with the Ordinance. (ECF No.
37-1 at 25-26.) Thus, Plaintiffs argue that the ordinance authorizes warrantless searches of Plaintiffs’
businesses in violation of the Fourth and Fourteenth Amendments. (ECF No. 37-1 at 26.) Plaintiffs’
arguments do not demonstrate a likelihood of success on the merits on this point.
A broad administrative search of a business will not violate the Fourth Amendment where: (1)
there is a “substantial” government interest that informs the regulatory scheme pursuant to which the
inspection is made; (2) the warrantless inspection is necessary to further the regulatory scheme; and
(3) the statute’s inspection program, in terms of the certainty and regularity of its application, provides
a constitutionally adequate substitute for a warrant. New York v. Burger, 482 U.S. 691, 702-703
(1987). Here, Section 12.5-146 allows for administrative inspections but only “from time to time on
an occasional basis” in the portions of the premises where patrons are permitted, during the times
when the establishment is occupied by patrons and open to the public. (ECF No. 48-2 at 15.) The
purpose of the inspections is to ensure compliance with specific regulations of the ordinance. (ECF
No. 48-2 at 15.) Accordingly, in viewing Section 12.5-146 in light of the requirements of Burger, the
Court cannot find that Plaintiffs would likely succeed on the merits of their Fourth Amendment claim.
See Allno Enter., Inc., 10 F.App’x at 204; see also Andy’s Rest. & Lounge, Inc. v. City of Gary, 466
F.3d 550, 557 (7th Cir. 2006)(affirming district court’s determination that similar inspection language
did not implicate privacy interest protected by the Fourth Amendment);
F. Secondary Effects in Dispute
Plaintiffs seek the opportunity to challenge Horry County’s asserted rationale for its laws and

-34-

make the case that adult businesses do not cause adverse secondary effects. (ECF No. 37-1 at 28-29.)
At the preliminary injunction stage, Plaintiffs must demonstrate that it is likely that the government
will fail to demonstrate that the regulations are designed to advance a substantial government interest,
specifically combating the negative secondary effects associated with adult entertainment businesses.
In view of the record and briefing on the matter, Plaintiffs have failed to demonstrate the required
likelihood of success on the merits as to this aspect of the analysis.
The Supreme Court has granted flexibility to governments to develop regulation designed to
protect their communities from the secondary effects of protected adult speech. See, e.g., City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). Here, the stated purpose, preamble, and
legislative record for Ordinances 29-13 and 30-13 illustrate Horry County’s intentions in preventing
adult businesses’ secondary effects. The ordinances expressly state the purpose: “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.” (ECF No. 48-2 at 3; ECF
No. 48-3 at 3.) The Ordinances further state that “it is neither the intent nor effect of this [ordinance]
to restrict or deny access by adults to sexually oriented materials protected by the First Amendment,
or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended
market.” (ECF No. 48-2 at 3; ECF No. 48-3 at 3.) In Imaginary Images, the Fourth Circuit explained
that although the government must “‘fairly support’ its policy, it need not settle the matter beyond
debate or produce an exhaustive evidentiary demonstration.” Imaginary Images, Inc., 612 F.3d at 742.
The Supreme Court has held that “[t]he First Amendment does not require a city, before enacting such
an ordinance, to conduct new studies or produce evidence independent of that already generated by

-35-

other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to
the problem that the city addresses.” Renton, 475 U.S. at 51–52. Moreover, cities may rely on the
evidentiary foundation established in other judicial opinions if the expressive activity is of the same
character. Pap’s A.M., 529 U.S. at 296–97. Officials “‘need not show that each individual adult
establishment actually generates the undesired secondary effects.’” Imaginary Images, Inc., 612 F.3d
at 747 (quoting Independence News, Inc., 568 F.3d at 156). A demonstration that adult entertainment
businesses as a category produce secondary effects is sufficient. Id. Further, the government’s policy
expertise is entitled to deference and Horry County may “demonstrate the efficacy of its method of
reducing secondary effects ‘by appeal to common sense,’ rather than ‘empirical data.’” Imaginary
Images, Inc., 612 F.3d at 742 (citing Alameda Books, 535 U.S. at 439-40 (plurality)); see also Giovani
Carandola, Ltd. v. Fox, 470 F.3d 1074, 1082 (4th Cir.2006) (“even without considering any evidence,
we can conclude that the State has a substantial interest in regulating nude and topless dancing,
because such entertainment has ‘a long history of spawning deleterious effects.’”(internal citation
omitted)).
Here, Horry County enacted the subject ordinances based on evidence of adverse secondary
effects of adult uses presented in hearings and in reports made to the County Council, findings and
interpretations based on case law, and reports concerning secondary effects occurring in and around
adult entertainment establishments across the country. (ECF No. 48-2 at 4-5; ECF No. 48-3 at 3-5;
ECF Nos. 54-57.) Such evidence is more than sufficient to establish the interests that the ordinances
seek to further in preventing secondary effects. See Mom N Pops, Inc., 979 F. Supp. at 390 (“The
language of the preamble provides a clear statement of intent. By this ordinance Charlotte seeks to
further what is unquestionably a substantial interest in curbing the blighting of neighborhoods and to

-36-

protect the integrity of schools, churches, and areas where children frequent.”) Plaintiffs have not
demonstrated otherwise. Given the above-noted standards, and the absence of any demonstration by
Plaintiffs that the applicable presumptions should not apply, Plaintiffs have failed to demonstrate the
required likelihood of success on the merits necessary for a preliminary injunction for this aspect of
the intermediate scrutiny inquiry. Upon review of the evidence and in light of the testimony presented
in this case, the Court concludes that Plaintiffs cannot show a likelihood of success on the merits.
2.

Irreparable Harm in the Absence of Injunctive Relief

Plaintiffs argue that the two new ordinances threaten RT Entertainment’s constitutional rights
in that they would force The Gold Club I to close its doors and seek a new location, or alternatively,
compel RT Entertainment to change the content of the entertainment The Gold Club I presents to its
audience. (ECF No. 37-1 at 29.) Plaintiffs maintain that MJJG Restaurant and Restaurant Row’s First
Amendment rights are subject to a continuing prior restraint as to the content of the expression they
can present. (ECF No. 37-1 at 30.)
“[I]n the context of an alleged violation of First Amendment rights, a plaintiff’s claimed
irreparable harm is ‘inseparably linked’ to the likelihood of success on the merits of plaintiff’s First
Amendment claim.” WV Ass’n of Club Owners and Fraternal Services, Inc. v. Musgrave, 553 F.3d
292, 298 (4th Cir. 2009)(internal citation omitted). This Court acknowledges that Plaintiffs will suffer
irreparable harm if it suffers a loss of its First Amendment freedoms. See Newsom ex rel. Newsom v.
Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir.2003) (“[T]he Supreme Court has explained that
‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))). But Plaintiffs have failed
to show that Ordinances 29-13 and 30-13, which have not been applied to them, have violated their

-37-

constitutional rights. Plaintiff RT Entertainment can continue its operation as long as it does not
operate as an adult entertainment establishment. Plaintiffs MJJG Restaurant and Restaurant Row can
open a restaurant and nightclub at the proposed location as long as they will not operate as an adult
entertainment establishment as defined by the terms of the zoning ordinance or Plaintiffs can opt to
open an adult entertainment establishment at an alternative location. The Court has concluded that
Plaintiffs are not likely to succeed on the merits, therefore they are also not likely to suffer irreparable
harm in the absence of an injunction.
3.

Balancing of the Equities

As to this factor, Plaintiff contends that it is inconceivable that the issuance of a preliminary
injunction would cause any harm to any citizens or to Defendants in that Plaintiffs only seek to
maintain the status quo while the constitutional validity of these ordinances is litigated. (ECF No. 371 at 30.)

The Court cannot agree.

As noted above, Horry County has put forth evidence

demonstrating the substantial interest it has in minimizing the negative secondary effects of adult
entertainment establishments. In light of Horry County’s concerns about protecting the health, safety
and welfare of it citizens, preserving the character of surrounding neighborhoods, and deterring the
spread of urban blight (ECF No. 48-2 at 1; ECF No. 48-3 at 1), Plaintiffs have not shown that the
balance of the equities tips in their favor.
4.

Injunctive Relief in the Public Interest

Finally, Plaintiffs argue that it is in the public interest to uphold a constitutional right. (ECF
No. 37-1 at 30.) The Court has concluded that Plaintiffs have not met their burden in demonstrating
a constitutional violation of their First Amendment rights. Thus, “preserving enforcement of the
zoning ordinance and privilege license scheme is in the public interest, tending to mitigate or eliminate

-38-

deleterious secondary effects.” Mom N Pops, 979 F. Supp. at 395.
CONCLUSION
“Because a preliminary injunction affords, on a temporary basis, the relief that can be granted
permanently after trial, the party seeking the preliminary injunction must demonstrate by ‘a clear
showing’ that, among other things, it is likely to succeed on the merits at trial.” Real Truth, 575 F.3d
at 345 (internal citation omitted). This requirement is far stricter than the requirement that a plaintiff
must demonstrate only a “grave or serious question for litigation.” Id. at 347. For the reasons stated
above, this Court concludes that a preliminary injunction as requested by Plaintiffs should not be
granted. Accordingly, Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 37) is also DENIED.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
March 28, 2014
Florence, South Carolina

-39-