South Carolina Supreme Court upholds Myrtle Beach’s ban on smoke shops, tobacco stores in city’s downtown

MYRTLE BEACH, S.C. (WBTW) — The South Carolina Supreme Court has upheld a Myrtle Beach ordinance aimed at keeping smoke shops, tobacco stores and other businesses that don’t align with the city’s “family friendly nature” out of the downtown area.

Nine of the 25 businesses affected by the so-called “overlay ordinance” took their case to the Supreme Court after a decision in Horry County Circuit Court.

“We now hold that, under this Court’s long-standing precedent, the overlay ordinance did not impermissibly spot zone the city’s historic downtown area,” Justice John W. Kittredge wrote in the Supreme Court ruling filed on Wednesday. “We additionally find the overlay ordinance is a constitutional exercise of the city’s police powers. We therefore affirm the decision of the circuit court and uphold the validity of the ordinance.”

The issue has been brewing since 2018 when the city adopted the ordinance banning items like CBD products and e-cigarettes, prompting business owners to seek a temporary restraining order. They said the ordinance violated their constitutional rights and was an abuse of government power. 

Several businesses along Ocean Boulevard also filed a federal lawsuit in December 2019 in federal court to try to block the ordinance. However, Wednesday’s ruling indicated that parts of that case were dismissed, though free speech and equal protection claims were left pending until the resolution of state court proceedings.

According to Wednesday’s ruling, the businesses have claimed that the ordinance is an example of “impermissible reverse spot zoning, which the court described as occurring when a “zoning ordinance restricts the use of a property when virtually all the property’s adjoining neighbors are not subject to the use restriction.”

“Oftentimes, reverse spot zoning occurs where a zoning ‘island’ develops as the result of a “municipality’s failure to rezone a portion of land to bring it into conformity with similar surrounding parcels that are otherwise indistinguishable,” the court said.

However, the court ruled that a zoning “island” did not occur in this case.

“The prohibited retail uses in the OBEOD (Ocean Boulevard Entertainment Overlay District) were not the result of a zoning ‘island’ that developed as the surrounding areas was rezoned while the OBEOD was left behind; rather, the OBEOD was created by an affirmative legislative act by the city.”

Wednesday’s ruling also said the businesses failed to show that the district’s boundaries were “arbitrary and capricious.”

The court also ruled against the business’s claim that the ordinance violates state law by making it illegal to sell products that are otherwise legal under state law.

“This ordinance does not impose any criminal penalties for continuing to engage in the prohibited retail uses after the amortization period: rather, the penalty provided in the ordinance is the suspension or revocation of the nonconforming business’s business license,” the ruling said.

According to the ruling, the amortization period was the time between when the ordinance was adopted in August 2018 and the December 2018 deadline businesses were given to halt the sale of items targeted in the ordinance.