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U.S. DISTRICT COURT

DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

ANI CREATION, INC. d/b/a Rasta, ANI Case No.:

CREATION, INC. d/b/a Wacky T’s, BLUE
SMOKE, LLC d/b/a Doctor Vape, BLUE COMPLAINT FOR CIVIL
SMOKE, LLC d/b/a Blue Smoke Vape RIGHTS VIOLATIONS,
Shop, ABNME, LLC d/b/a Best for Less, EQUITABLE DAMAGES,
KORETZKY, LLC d/b/a Grasshopper, PUNITIVE DAMAGES, AND
RED HOT SHOPPE, INC., E.T. REQUEST FOR INJUNCTIVE
SPORTSWEAR, INC. d/b/a Pacific RELIEF
Beachwear, MYRTLE BEACH GENERAL
STORE, LLC, I AM IT, INC. d/b/a T-Shirt JURY TRIAL DEMANDED
King, and BLUE BAY RETAIL, INC. d/b/a
Surf’s Up. Judge:
Plaintiffs, Date Action filed:
v. Date set for trial:

CITY OF MYRTLE BEACH, MYRTLE

BEACH CITY COUNCIL, BRENDA
BETHUNE, Individually and as Mayor of
the City of Myrtle Beach, MICHAEL
CHESTNUT, Individually and as a member
of the Myrtle Beach City Council, MARY
JEFFCOAT, Individually and as a member
of the Myrtle Beach City Council, CLYDE
H. LOWDER, Individually and as a
member of the Myrtle Beach City Council,
PHILIP N. RENDER, Individually and as a
member of the Myrtle Beach City Council,
GREGG SMITH, Individually and as a
member of the Myrtle Beach City Council,
JACKIE VEREEN, Individually and as a
member of the Myrtle Beach City Council.

Defendants.

I. NATURE OF THE CASE

1. Plaintiffs ANI CREATION, INC. d/b/a Rasta, ANI CREATION, INC.

d/b/a Wacky T’s, BLUE SMOKE, LLC d/b/a Doctor Vape, BLUE SMOKE, LLC d/b/a

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Blue Smoke Vape Shop, ABNME, LLC d/b/a Best for Less, KORETZKY, LLC d/b/a

Grasshopper, RED HOT SHOPPE, INC., E.T. SPORTSWEAR, INC. d/b/a Pacific

Beachwear, MYRTLE BEACH GENERAL STORE, LLC, I AM IT, INC. d/b/a T-Shirt

King, and BLUE BAY RETAIL, INC. d/b/a Surf’s Up (collectively referred to as

“Plaintiffs”) bring this action against Defendants CITY OF MYRTLE BEACH, MYRTLE

BEACH CITY COUNCIL, BRENDA BETHUNE, Individually and as Mayor of the City

of Myrtle Beach, MICHAEL CHESTNUT, Individually and as a member of the Myrtle

Beach City Council, MARY JEFFCOAT, Individually and as a member of the Myrtle

Beach City Council, CLYDE H. LOWDER, Individually and as a member of the Myrtle

Beach City Council, PHILIP N. RENDER, Individually and as a member of the Myrtle

Beach City Council, GREGG SMITH, Individually and as a member of the Myrtle Beach

City Council, JACKIE VEREEN, Individually and as a member of the Myrtle Beach City

Council (hereinafter referred to collectively as “Defendants”). This complaint seeks

equitable and injunctive relief for damages resulting from the CBD Overlay ordinance

implemented by the Myrtle Beach City Council and the adverse impact that it will have

on businesses located on Ocean Boulevard in the City of Myrtle Beach.

II. JURISDICTION and PARTIES

2. Plaintiffs are businesses located and doing business in the Downtown

business zone along Ocean Boulevard in the City of Myrtle Beach, South Carolina. All

corporate Plaintiffs are entities formed and existing under the laws of South Carolina,

or entities that have been admitted to conduct business within the State of South

Carolina.

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3. Defendant City of Myrtle Beach is a municipal corporation and is the legal

entity responsible for itself and for the members of the Myrtle Beach City Council. This

Defendant is also the employer of the individual Defendants and is a proper entity to be

sued under 42 U.S.C. §1983.

4. At all times relevant hereto, Defendant Brenda Bethune was a citizen of

the United States and a resident of the State of South Carolina. Defendant Brenda

Bethune is sued in her official capacity as the Mayor of the City of Myrtle Beach,

employed by the Defendant City, and was acting under color of state law.

5. At all times relevant hereto, Defendant Michael Chestnut was a citizen of

the United States and a resident of the State of South Carolina. Defendant Michael

Chestnut is sued in his official capacity as a member of the Council of the City of Myrtle

Beach, employed by the Defendant City, and was acting under color of state law.

6. At all times relevant hereto, Defendant Mary Jeffcoat was a citizen of the

United States and a resident of the State of South Carolina. Defendant Mary Jeffcoat is

sued in her official capacity as a member of the Council of the City of Myrtle Beach,

employed by the Defendant City, and was acting under color of state law.

7. At all times relevant hereto, Defendant Clyde H. Lowder was a citizen of

the United States and a resident of the State of South Carolina. Defendant Clyde H.

Lowder is sued in his official capacity as a member of the Council of the City of Myrtle

Beach, employed by the Defendant City, and was acting under color of state law.

8. At all times relevant hereto, Defendant Philip N. Render was a citizen of

the United States and a resident of the State of South Carolina. Defendant Philip N.

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Render is sued in his official capacity as a member of the Council of the City of Myrtle

Beach, employed by the Defendant City, and was acting under color of state law.

9. At all times relevant hereto, Defendant Gregg Smith was a citizen of the

United States and a resident of the State of South Carolina. Defendant Gregg Smith is

sued in his official capacity as a member of the Council of the City of Myrtle Beach,

employed by the Defendant City, and was acting under color of state law.

10. At all times relevant hereto, Defendant Jackie Vereen was a citizen of the

United States and a resident of the State of South Carolina. Defendant Jackie Vereen is

sued in her official capacity as a member of the Council of the City of Myrtle Beach,

employed by the Defendant City, and was acting under color of state law.

11. This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331

and §1343(3) in that the controversy arises under the United States Constitution and

under 42 U.S.C. §1983. This Court has authority to award attorneys fees pursuant to 42

U.S.C. §1988. Plaintiffs further invoke the supplemental jurisdiction of this Court under

28 U.S.C. §1367(a) to hear and adjudicate state law claims. Each of the acts alleged

herein were done by defendants, or their officers, agents, and employees under color

and pretense of the statues, ordinances, regulations, customs and usages of the City of

Myrtle Beach, South Carolina.

III. FACTUAL ALLEGATIONS

12. On or about August 14, 2018, the City adopted Ordinance 2017-23 to enact

and establish the “Ocean Boulevard Entertainment Overlay District” (herein the

“Ordinance”). The Ordinance prohibits smoke shops, tobacco stores, retail

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merchandising of alternative nicotine, alternative nicotine delivery products, vapor

products, e-cigarettes, tobacco, tobacco products, or tobacco paraphernalia products,

tobacco paraphernalia and cannabis products along with retail merchandising or

display of sexually oriented materials, and further prohibits providing space for a

barker for a business not located at the premises. A copy of the Ordinance is attached

as Exhibit “A” to this Complaint.

13. In passing the Ordinance at the purported “Second Reading” on August

14, 2018, Council and the City relied upon a purported “First Reading” of the Ordinance

that occurred on May 9, 2017, more than fifteen (15) months prior to the Second

Reading.

14. The version of the Ordinance presented for “Second Reading” (and

approval) on August 14, 2018 was substantially and materially different from the initial

draft of the Ordinance which had been initially presented on May 9, 2017. A copy of the

Ordinance as originally presented in 2017 is attached as Exhibit “B” to this Complaint.

Plaintiffs note that, as originally proposed, the Ordinance contained an “amortization

period” of twelve (12) months, whereas the Ordinance as finally adopted provided for

an amortization period of 139 Days. See Para. 21, and following, herein below.

15. After the Ordinance had been initially presented in May 2017, the

Plaintiffs were informed and at the time believed that the proposal had been referred by

Council to the Myrtle Beach Planning Commission, which never voted, upon

information and belief, to recommend the proposal, and never returned the proposal to

Council.

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16. Upon information and belief, Plaintiffs are informed and believe that the

Myrtle Beach Planning Commission never recommended to Council that the proposal

in question be adopted.

17. Notwithstanding the lack of any recommendation to proceed from the

Planning Commission, the Council unilaterally decided in August 2018 to promptly

adopt the measure that was subsequently passed as the Ordinance on August 14, 2018.

18. The first notice that any of the Plaintiffs received of the impending

adoption of the Ordinance was by way of press reports published over the weekend

prior to Council’s adoption of the Ordinance at its meeting on Tuesday, August 14,

2018, or approximately three to four days prior to the Ordinance’s adoption.

19. In the intervening 15 months between the purported “First Reading” of

the Ordinance and the “Second Reading” of the Ordinance, an election was held in the

City of Myrtle Beach, which resulted in a new Mayor being elected for the City, and two

new members of City Council, Defendants Gregg Smith and Jackie Vereen, who were

elected in 2018.

20. Plaintiffs are gravely injured by the passage of the Ordinance, as it

purports to render their businesses substantially prohibited and therefore financially

unsustainable, or in some cases, illegal altogether.

21. The Ordinance contains a delayed effective date of January 1, 2019, and

suggests that the period between August 14, 2018, a period of 139 days, represents an

“amortization period” for the Ordinance and those affected.

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22. However, as a practical financial matter, it is impossible for Plaintiffs to

recoup their various investments in their respective businesses within the purported

139 day “amortization period” set forth within the Ordinance.

23. If allowed to be enforced, the Ordinance will subject the Plaintiffs to grave

and irreparable harm, including the loss of their respective businesses which, for many

of the Plaintiffs represent the bulk of their family savings. Enforcement of this

Ordinance by the City will subject these Plaintiffs to grievous and irreparable financial

and personal harm.

IV. CLAIMS

24. The Ordinance, as written, abuses governmental power, denies free

speech in a traditional public forum, does not further any important or substantial

government interest, and imposes restrictions that are greater than necessary to further

any government interest asserted.

25. Because the Ordinance allows no reasonable opportunity for the Plaintiffs

to recover their investments in their respective businesses, by preventing those

businesses from continuing operation past January 1, 2019, the Plaintiffs are informed

and believe that the Ordinance represents and improper Regulatory Taking of their

property, in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution,

and of the South Carolina State Constitution.

26. Specifically, but not exclusively, the Ordinance is content-based because

the main purpose in enacting it was to suppress the speech of a certain content and

because it differentiates speech based on the content of the speech.

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27. Specifically, but not exclusively, the Ordinance is not narrowly tailored to

serve any significant governmental interest and imposes restrictions that are greater

than necessary to further such interests because, on its face and as applied, it restricts

display and sale of merchandise that is allowed in other parts of the City of Myrtle

Beach.

28. Any interest advanced by Defendants to support the Ordinance is related

to the suppression of constitutional and statutory rights, and is also minor compared to

those rights of the Plaintiffs which are infringed upon by the Ordinance. Moreover,

Plaintiffs contend that Defendants have, in enacting the Ordinance, improperly

conflated various legal and constitutionally protected behaviors with “drugs” and other

conduct that is generally illegal. Plaintiffs contend this was done to mislead the public

and reflects the improper motive of the City in implementing the Ordinance.

29. The resulting Ordinance has been enacted by the City in a manner that has

failed to adhere to the procedural and legislative guidelines that have customarily been

followed by the Council, a method that is generally arbitrary and capricious, and that

has deprived these Plaintiffs of Procedural and Substantive Due Process rights

guaranteed them by the Fifth and Fourteenth Amendments to the U.S. Constitution,

and by the South Carolina State Constitution.

30. Specifically, but not exclusively, the Plaintiffs observe that the Ordinance

has deprived them of certain rights to Equal Protection under the law, as guaranteed

them by the Fifth and Fourteenth Amendments to the U.S. Constitution.

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31. Plaintiffs have observed that the merchants impacted by the Ordinance

are, almost without exception, of Jewish descent or extraction, and that, as applied, the

impact of the Ordinance falls almost exclusively upon the Jewish community in

downtown Myrtle Beach. Plaintiffs therefore contend that, using an as-applied analysis,

the Ordinance must fail any Equal Protection review due to the disparate impact that it

has on the Jewish community in Myrtle Beach.

32. Unless and until Defendants are restrained by order of this Court,

Plaintiffs are informed and believe that Defendants, acting through their officers,

servants, agents and employees, will enforce the Ordinance.

33. Unless and until this Court declares the Ordinance unconstitutional,

Defendant, acting through its officers, servants, agents and employees, will enforce the

Ordinance.

34. All of the acts of the Defendants, their officers, agents, servants and

employees, as alleged herein, were done or are threatened to be done under color and

pretense of the statutes, ordinances, regulations, customs, official policies, official

procedures, and usages of the City of Myrtle Beach and the State of South Carolina.

35. Plaintiffs, and their businesses, are suffering irreparable injury from the

enforcement and threat of enforcement of the Ordinance, and will continue to suffer

irreparable injury until the threat of enforcement is lifted.

IV. CAUSES OF ACTION

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FIRST CAUSE OF ACTION

42 U.S.C. §1983: Free Speech and Due Process

36. Plaintiffs incorporate by reference all preceding paragraphs as if fully

restated here.

37. The Ordinance is an unconstitutional abridgement on its face, and as

applied or threatened to be applied, of the Plaintiffs’ affirmative rights to freedom of

speech under the United States Constitution, First and Fourteenth Amendments.

38. The Ordinance, on its face and as applied or threatened to be applied, is

an unconstitutionally overbroad restriction on expressive activity.

39. The Ordinance, on its face and as applied or threatened to be applied, is

an unconstitutionally vague restriction on expressive activity.

40. The Ordinance, on its face and as applied or threatened to be applied, is

an impermissible content-based and viewpoint-based restriction on the Plaintiffs’

constitutionally protected speech.

41. The Ordinance, on its face and as applied or threatened to be applied,

does not leave open ample alternative channels of communication.

42. The Ordinance, on its face and as applied or threatened to be applied,

does not serve a significant governmental interest.

43. The Ordinance, on its face and as applied or threatened to be applied, is

neither narrowly tailored nor the least restrictive means to accomplish any permissible

governmental purpose sought to be served by the legislation.

44. The Ordinance fails to adequately advise, notify, or inform persons

threatened with possible prosecution for violation of its requirements. The Ordinance is

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therefore unconstitutionally vague, on its face and as applied or threatened to be

applied, in violation of the due process guarantee of the Fourteenth Amendment to the

United States Constitution.

45. The Ordinance is an irrational and unreasonable statute, imposing

unjustifiable restrictions on the exercise of protected constitutional rights. Because the

Ordinance is irrational and unreasonable, its application would violate the due process

guarantee of the Fourteenth Amendment to the United States Constitution.

SECOND CAUSE OF ACTION

42 U.S.C. §1983: Equal Protection

46. Plaintiffs incorporate by reference paragraphs 1 through 45 herein above,

as if each were fully set forth here.

47. The Ordinance, on its face and as applied or threatened to be applied,

violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, but

not exclusively, the ordinance singles out a few merchants in a small area of the City of

Myrtle Beach, rather than enacting its contemplated prohibitions on a city-wide basis.

48. Moreover, Plaintiffs are informed and believed that all or substantially all

of the merchants within the Overlay District contemplated by the Ordinance are Jewish,

or are of Jewish descent or extraction, and that as a result, the Ordinance as applied, if

not facially, violates the Equal Protection Clause of the U.S. Constitution’s Fourteenth

Amendment.

49. The Ordinance, as applied or threatened to be applied, if not on its face,

violates the Equal Protection Clause of the Fourteenth Amendment to the United States

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Constitution and similar guarantees in the South Carolina State Constitution, by failing

to similarly impact other similarly situated merchants within the City of Myrtle Beach.

50. The City has no compelling interest in the geographical boundaries drawn

by the Overlay District contemplated in the Ordinance, and therefore can show no

justification for the resulting disparate impact of the Ordinance on the Plaintiffs in

question.

51. The Ordinance further singles out businesses promoting the sale of

tobacco products, “vape” products, and merchandise that displays sexual or drug

related information, as a class to be specifically isolated for prohibition, and

correspondingly burdens the speech of that class of persons improperly. The City has

no compelling interest justifying the creation of this class for purposes of curtailing

liberties guaranteed by the Constitution, and cannot show that this classification is

necessary to serve any legitimate governmental interest.

THIRD CAUSE OF ACTION

Regulatory Taking in Violation of the Fifth and Fourteenth Amendments,
U.S. Constitution

52. Plaintiffs incorporate by reference paragraphs 1 through 51 as if fully set

forth here.

53. Plaintiffs are informed and believe that the Ordinance does and will

deprive them of all or substantially all of the economically viable use of their

businesses.

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54. The Ordinance will substantially impair and in some cases will completely

decimate the value of the various Plaintiffs respective businesses that fall within the

reach of the Overlay District and the Ordinance.

55. As such, Plaintiff’s are informed and believe that the Ordinance, as

drafted and as applied to them, violates the “Takings Clause” of the Fifth Amendment

and the Fourteenth Amendment to the U.S. Constitution.

56. Plaintiffs are informed and believe that the Defendants cannot enact this

Ordinance without providing “just compensation” to the Plaintiffs, as provided for by

the Fifth and Fourteenth Amendments to the U.S. Constitution.

FOURTH CAUSE OF ACTION

Violation of Procedural and Substantive Due Process, U.S. Constitution

57. Plaintiffs incorporate by reference paragraphs 1 through 56 herein above,

as if each were fully set forth here.

58. As set forth herein above, Plaintiffs contend that the enactment of the

Ordinance by the Defendants was arbitrary and capricious, and has deprived them of

procedural and substantive rights of Due Process guaranteed by the Fifth and

Fourteenth Amendments to the U.S. Constitution.

59. The Defendants failed to follow the City’s own well-established practices

for legislative procedure in enacting the Ordinance in question.

60. The Defendants surreptitiously resurrected a proposal that Plaintiffs were

led to believe had been indefinitely “tabled” in 2017, and in so doing, deprived the

Plaintiffs of any reasonable means to object to the enactment of the Ordinance in

question.

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FIFTH CAUSE OF ACTION

Violation of Due Process and Equal Protection, South Carolina Constitution
Article I Section 3

61. Plaintiffs incorporate by reference paragraphs 1 through 60 as if each were

fully set forth here.

62. The Ordinance, on its face and as applied or threatened to be applied,

violates Article I, Section 3 of the South Carolina Constitution, by depriving the

Plaintiffs of certain rights a Due Process and Equal Protection guaranteed thereby.

SIXTH CAUSE OF ACTION

Violation of Freedom of Speech, South Carolina Constitution Article I Section 2

63. Plaintiffs incorporate by reference paragraphs 1 through 62 as if each were

fully set forth here.

64. The ordinance, on its face and as applied or threatened to be applied,

violates Article I, Section 2 of the South Carolina Constitution.

65. Unless enjoined by the Court, Defendants have infringed and will

continue to infringe on Plaintiffs’ constitutionally protected rights, and as a result

thereby causing these Plaintiffs manifest and irreparable harm. This threat of imminent

injury to the Plaintiffs from the ongoing and continuing violations by the Defendants of

the Plaintiffs’ constitutionally protected rights, requires injunctive relief.

WHEREFORE, Plaintiffs respectfully pray that this Court:

(a) Enter judgment against the Defendants;

(b) Enter a declaratory judgment declaring the acts of the Defendants to be a

violation of Plaintiffs’ constitutional rights, to include their rights of freedom of

speech, equal protection, and due process, among others;

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(c) Issue a declaratory judgment declaring that the Ordinance attached as Appendix

“A” to this Complaint, for the creation of an Ocean Boulevard Entertainment

Overlay District in Myrtle Beach, is unconstitutional on its face;

(d) Issue a declaratory judgment declaring that the Ordinance is unconstitutional as

enforced and as applied;

(e) Issue a temporary restraining order, and a preliminary and permanent injunction

enjoining Defendants, their agents, servants, employees, officers and the City of

Myrtle Beach Police Department from enforcing the Ordinance;

(f) Award plaintiffs’ costs, interest and reasonable attorneys’ fees for this action

pursuant to 42 U.SA.C. 1988, and other relevant statues;

(g) Award the Plaintiffs their legal and equitable damages, including any punitive

damages as may be appropriate; and

(h) Order such other and further relief as the Court deems just and proper under the

circumstances.

JURY TRIAL DEMANDED

Plaintiffs hereby request a jury trial in this matter.

Respectfully Submitted,

s/ Gene M. Connell, Jr.

Gene M. Connell, Jr., Esq. (ID #236)
Kelaher, Connell & Connor, P.C.
1500 U.S. Highway 17 North, Suite 209
Surfside Beach, SC 29575
Telephone: (866) 465-3666

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s/ Reese R. Boyd, III

Reese R. Boyd, III, Esq. (ID #9212)
Davis & Boyd, LLC
1110 London Street, Suite 201
Myrtle Beach, South Carolina 29577
Telephone: (843) 839-9800

Attorneys for the Plaintiffs

Dated: December 19, 2018

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Exhibit A
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Exhibit B
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