North Myrtle defends noise ordinance, beach rental policy amid lawsuits

North Myrtle Beach is responding to a pair of businesses that have sued them in federal court, with their attorneys penning defenses that accuse each of willfully operating outside the law.

The suits, respectively brought against Cherry Grove Beach Gear and SkyBar, question the city’s long-standing prohibition on private commerce on the sand without a franchise agreement and its noise ordinance.

North Myrtle Beach City spokesman Donald Graham has said the city doesn’t comment on pending litigation. In both suits, the companies have asked judges for a preliminary injunction — allowing them to continue operations as normal until a ruling is made.

Cherry Grove Beach Gear sues over franchise law

The family-run company, which has racked up more than $15,000 in citations since June, sued North Myrtle Beach in July because of a 2007 law that gives the city or an authorized franchisee exclusive right to set up rental equipment on the beach

In a 20-page motion filed July 11, Cherry Grove Beach Gear owner Derek Calhoun says city leaders are violating antitrust laws by refusing to consider them for a franchise allowing the installation of rental equipment on public shores. City officials wrote a “sham” law “ in 2007 designed to restrict competitive business practices and monopolize business in order to maximize profits, the suit argues.

But lawyers for the city say Cherry Grove is marketing off its own complaint.

“Plaintiffs don’t like the law, so they refuse to comply with it. And they have turned their ongoing violations of the law into a marketing tactic, gleefully announcing each citation on social media,” city attorneys wrote in an Aug. 5 motion.

Calhoun’s wife, Claire , has said they twice asked the city for an agreement — first being rejected in 2020 and then ignored since making a second ask in May. She said installing rental gear for beach goers is a significant part of Cherry Grove’s success.

North Myrtle Beach currently has franchise agreements with a trio of companies that offer banana boats and parasailing, but officials have said they won’t consider a business relationship with Cherry Grove as long as it continues to violate its rule.

North Myrtle Beach has restricted private commerce on its sands since 1990, when the council first required vendors to get a franchise agreement. The rules have been tweaked several times since, most recently in 2010 when authorized hours, placement and size of shading devices and removal of equipment was written into the law.

Cherry Grove’s lawsuit alleges North Myrtle Beach has knowingly misled statements online and at meetings that amount to defamation and slander, but does not give examples.

“Rather, Plaintiffs themselves have enthusiastically published and promoted each and every citation on social media, celebrating their criminal conduct with the hashtag #outlawbeachlife.”

City-managed rentals are a revenue stream that officials say helps keep taxes down and pay for lifeguards and beach patrols. North Myrtle Beach employs 49 lifeguards that make between $15 and $17 an hour. In the 2022 budget, officials allocated $2.6 million in expected profits from the umbrella and chair rentals, with an additional $10,000 from food and drink purchases.

SkyBar is suing over North Myrtle’s noise ordinance

The Main Street venue sued North Myrtle beach July 5, alleging its October 2021 noise ordinance was so broadly worded that it violated First Amendment rights.

Owner Michael Moshoures, who’s being represented by attorneys from the state American Civil Liberties Union chapter, named Mayor Marilyn Hatley and Police Chief Tommy Dennis in his 10-page suit filed in U.S. District Court.

“The City of North Myrtle Beach has made it a crime to play “crude,” “smutty,” or “indecent” music at a volume barely perceptible to the human ear,” the suit alleges. “In so doing, the City has on the firmly rooted freedoms of speech and expression preserved by our federal constitution.”

But the city argues through attorneys the policy was a “measured response” to balance SkyBar’s business practices with concerns of the public who don’t want to hear its music.

The City Council last year approved a measure prohibiting establishments from playing music containing vulgar and obscene lyrics above 30 decibels om 7:01 a.m. to 10:59 p.m the noise equivalent of speaking in a whisper.

From 11 p.m. to 7 a.m., the music can’t go higher than 50 decibels from Sky Bar’s 214 Main St. property line, roughly as loud as a normal conversation.

The city ordinance also makes it illegal to play any music from 7:01 a.m. to 10:59 p.m. at a decibel level of more than 80 (garbage disposal levels of noise) and from 11 p.m. to 7 a.m. at a level higher than 60 decibels.

“The ordinance is not a ban. It is a restriction on how loudly one can intrude upon one’s neighbors during certain hours of the day. It does not prevent the playing of music or the enjoyment of it by those who elect to hear its content so long as it is kept at levels only they can understand,” the city’s attorneys argued.