Cricket Store 17, LLC v. City of Columbia

996 F.Supp.2d 422

CRICKET STORE 17, LLC d/b/a Taboo, Plaintiff

v.CITY OF COLUMBIA, Defendant.

C/A No. 3:13–cv–3557–TLW.

United States District Court,

D. South Carolina,

Columbia Division.

Feb. 10, 2014.

Thomas R. Goldstein, Belk Cobb Infinger and Goldstein, Charleston, SC, for Plaintiff.

Scott Dean Bergthold, Law Office of Scott D. Bergthold PLLC, Chattanooga, TN, Jeanne J. Brooker, Peter M. Balthazor, Office of the City Attorney, Columbia, SC, for Defendant.

Opinion and Order

TERRY L. WOOTEN, Chief Judge.

This action, brought by Cricket Store 17, LLC d/b/a Taboo, alleges First, Fifth, and Fourteenth Amendment violations against the City of Columbia regarding Columbia's sexually oriented business ordinances. Before the Court is Taboo's Motion for Preliminary Injunction. (Doc. # 5.) For the reasons stated below, the Court denies Taboo's motion.

I. Factual and Procedural History

Taboo is a sexually oriented business located on “highly commercialized United States Highways” in Columbia, South Carolina. (Doc. # 5–2 at 2.) After receiving its business license from Columbia, it opened for business on December 5, 2011. ( Id. at 3.) It has operated continuously at its current location since opening.

[Taboo] is a small business that provides take home only retail merchandise. It is only 1,600 square feet, and it provides no on-site adult entertainment. There is no theater; there are no mini movies; and there are no live performances. What [Taboo] sells is a mixed inventory of clothing, lotions, candles, vitamins, massage oils, party supplies, batteries, contraceptives, smoking accessories, novelties, gifts, games, and DVDs and magazines.

( Id. at 4.)

On December 29, 2011, less than one month after Taboo opened, Columbia adopted Ordinance No. 2011–105 (“2011 Ordinance”) (Doc. # 1–1), which is a comprehensive ordinance regulating sexually oriented businesses in Columbia and which amended its then-existing sexually oriented business ordinance.

The purpose of the 2011 Ordinance is described as follows:

It is the purpose of this Article to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City. The provisions of this Article have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this Article to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this Article to condone or legitimize the distribution of obscene material.

§ 11–601(a). The 2011 Ordinance also contains an extensive findings and rationale section that lists dozens of court opinions and orders, reports from various cities across the country, and several journal articles. § 11–601(b). Based on this information, Columbia made the following findings:

(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation. Alcohol consumption impairs judgment and lowers inhibitions, thereby increasing the risk of adverse secondary effects.

(2) Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.

(3) Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the City's rationale for this Article, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the City's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this Article are reasonably believed to be relevant to said secondary effects.

Id. The legislative record consists of almost 2,200 pages.

Among other provisions, the 2011 Ordinance does the following:

— requires a sexually oriented business to hold a sexually oriented business license, § 11–604(a);

— requires each individual employee to hold a sexually oriented business employee license, § 11–604(b);

— provides standards for issuance, suspension, revocation, denial, and transfer of licenses, as well as appeals of licensing decisions, §§ 11–604–11;

— requires the business to be closed between midnight and 6:00 AM, § 11–612;

— restricts the location of the business, § 11–620(a)–(d);

— provides a two-year amortization period for an existing business, in addition to the possibility of a hardship extension, § 11–620(e)–(f);

On November 13, 2012, Columbia adopted Ordinance No. 2012–093 (“2012 Ordinance”). (Doc. # 7–7.) The 2012 Ordinance provides substantially the same purpose, findings, and rationale section as the 2011 Ordinance. § 17–371. Significant to Taboo's business, the 2012 Ordinance alters the permissible locations for a sexually oriented business. § 17–374.

Specifically, under the 2012 Ordinance, a sexually oriented business must be located within an M–1 (light industrial) or M–2 (heavy industrial) district. § 17–374(b). Additionally, it must be at least 900 feet from a church, a residential district, an outdoor recreational facility at which minors are likely to congregate, a lot devoted to residential use, a day care facility, or a cemetery. § 17–374(c). It also must be at least 1,000 feet from another sexually oriented business and at least 1,250 feet from any elementary or secondary school, and it may not be within the same building as another sexually oriented business. § 17–374(d)–(f).

Prior to filing this action, Taboo sought a hardship extension of the amortization period under § 11–620(f). That section provides that an application for a hardship extension “shall include evidence of purchase and improvement costs, income earned and lost, depreciation, and costs of relocation.” § 11–620(f). It also provides that “[t]he hardship extension shall be granted only upon a showing that the nonconforming sexually oriented business is unable to recoup its investments, made prior to the effective date of this Article, in its current location unless the hardship extension is granted.” Id.

Taboo's extension request was denied on November 29, 2013. (Doc. # 7–3 at 6.) The independent hearing officer found that Taboo “failed to establish the amount of its investment made prior to December 29, 2011 and it has also failed to establish that it has not reasonably recouped its investment.” ( Id. at 5.) The hearing officer further found that its accounting paperwork “showed significant inaccuracies, rendering the statements of little or no evidentiary value,” that “[t]he bank statements are, likewise, insufficient to show Taboo's investment prior to December 29, 2011 or the amount of investment recouped in that [Taboo's owner] comingled business and personal use of this account,” and that “no evidence was presented regarding income and expenses for 2013, which, at the time of [the] hearing, represented an additional 10 1/2 months for Taboo to recoup its investment.” ( Id. at 5–6.) Accordingly, the hearing officer denied the extension request. ( Id. at 6.)

On December 20, 2013, Taboo filed this action seeking monetary damages, injunctive relief, a declaration that the 2011 and 2012 Ordinances are unconstitutional (both facially and as-applied), and attorneys' fees. (Doc. # 1 at 11–12.) At the same time, Taboo filed its Motion for PreliminaryInjunction, requesting a “temporary restraining order/preliminary injunction” that would prohibit Columbia from taking any action to close the store upon the expiration of its 2013 business license on December 31, 2013, require Columbia to renew Taboo's 2014 business license, and prohibit the use of law enforcement to close the store until the Court has made a final ruling on the case. (Doc. # 5.) On December 30, 2013, Columbia filed a response in opposition, asking the Court to deny Taboo's motion. (Doc. # 7.) Also on December 30, 2013, the Court held a telephone conference with the parties' counsel and scheduled a hearing on the motion. On January 3, 2014, Taboo filed a reply in support of its motion. (Doc. # 12.) A hearing was held on January 10, 2014, at which the parties presented their legal arguments, offered the live testimony of Taboo's owner and the director of Columbia's Planning and Development Services Department, and entered evidence into the record.

The director of Columbia's Planning and Development Services Department testified at the hearing that, as of January 8, 2014, there are 45 parcels in the city, with a combined acreage of about 140 acres, that are available for use by a sexually oriented business. An exhibit listing these parcels, including their tax map numbers, addresses, and acreage, was admitted into evidence.

Taboo's owner testified regarding his familial and educational background, his prior involvement in the ownership of adult businesses,...