Back in April of this year, South Carolina’s supreme court upheld a hugely controversial zoning law passed by Myrtle Beach city leaders in 2018. Longtime members of our audience will recall this ordinance as banning the sale of a host of lawful items within a twenty block area along the city’s Ocean Boulevard.
I opposed the so-called “Boulevard Ban” – which outlawed cannabidiol, vaping products, smoking paraphernalia and “sexually oriented merchandise” between Sixth Avenue South and Sixteenth Avenue North on Ocean Boulevard (a.k.a. the “strip” in the heart of downtown Myrtle Beach).
“Restricting the sale of legal items from one consenting adult to another is wrong … especially when there are far less intrusive ways to address the underlying problem,” I noted at the time.
Aside from its draconian imposition on legal commerce, there were other problems with the “Boulevard Ban.” Ethically challenged local leaders were in such a rush to ram this measure through they bypassed a required second reading of the ordinance. In other words, the law was invalid before it was even passed.
Beyond that, there were – and are – serious conflicts of interest related to the ban involving local politicians, including Myrtle Beach mayor Brenda Bethune. This news outlet will be exploring some of those conflicts in more detail in future articles, but suffice it to say the ban is yet another troubling example of South Carolina politicians leveraging their power for selfish interests.
Oh, and the fact virtually all of the businesses targeted by the ban were Jewish-owned also raised concerns.
Ultimately, though, the core issue for me in this case had nothing to do with process or politics – and everything to do with the undue restriction of lawful commerce. This was not a situation in which a city council barred someone from opening a gun shop across the street from a high school – or a strip club across the street from a church. Such exercises of municipal power are understandable, often even advisable. Nor was this a case of local government prohibiting the sale of certain legal items within a new development or city annex – or an area of town where such items had never been sold before. There, a case (albeit a weaker one) could be made in favor of leveraging municipal authority.
Instead, this case involved government telling dozens of lawfully operating businesses that they could no longer sell legal products within an arbitrary boundary – even though they had been selling these same products within that boundary for years.
That is a definitional violation of vested property rights.
Nonetheless, late last month the court issued a revised opinion (.pdf) upholding the “Boulevard Ban” – claiming it was a “constitutional exercise of the city’s police powers.” The court issued its revised opinion in Ani, et. al. v. Myrtle Beach following an appeal (.pdf) filed in May by numerous impacted businesses.
Sadly, the revised opinion – issued on June 28, 2023 – glossed over numerous credible complaints, chief among them that the court had overturned nearly a century of precedent protecting businesses from precisely this sort of unfair discrimination.
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“A citizen with an existing business who is selling products should not lose his vested constitutional right to sell those products just because the zoning ordinance is changed by the city,” an appeal noted, citing numerous S.C. supreme court cases which previously upheld this principle.
Among those cases? A 1970 decision – Pure Oil Division v. City of Columbia – which upheld the longstanding doctrine of “good faith reliance” by business owners, i.e. their ability to use their property “as permitted under the zoning ordinance in force at the time of the application for a permit.”
In its original ruling, the court failed to even address this longstanding precedent. Even worse, it dismissively referred to several credible arguments advanced by the impacted businesses as nothing more than “appellants’ veritable barrage.”
The court also used some curious language in framing its internal deliberations regarding the legality of the Myrtle Beach ordinance.
“The burden of establishing the invalidity of a zoning ordinance is on the party attacking it to establish by clear and convincing evidence that the acts of the city council were arbitrary, unreasonable, and unjust,” justice John Kittredge wrote in the unanimous opinion of the court.
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I’m sorry … attacking? These small businesses were not attacking anything – they were attacked. And were compelled to defend themselves against an unjust tyranny.
Of course the real danger with the court’s flawed ruling isn’t the ongoing injustice done to the businesses impacted by the ‘Boulevard Ban.’ Rather, the real danger is the court’s establishment of a new precedent in the Palmetto State for municipal leaders who seek to arbitrarily intrude upon the rights of the private sector.
In a hastily added footnote to their original ruling, South Carolina’s justices belatedly acknowledged their embrace of such intrusions (and overturning of settled law) – arguing a “public necessity” doctrine now applies to such municipal takings. What constitutes a “public necessity?” They didn’t say …
So, it now falls to me to say what all of this ultimately means …
Vested property rights, it would appear, are a thing of the past in the Palmetto State … in the new order, government can take legal products off the shelves of lawfully operating businesses based on nothing more than the whim of local politicians (self-serving ones at that).
As this news outlet has often noted, small businesses in South Carolina are struggling mightily under the weight of an anti-competitive tax and regulatory climate. Not only did the supreme court just stab these small businesses in the back, its justices issued an engraved invitation to widespread institutional corruption at the municipal level that will have severely pernicious impacts on economic freedom (and economic activity) moving forward.
ABOUT THE AUTHOR …
Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children.
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