SC Supreme Court hears Myrtle Beach CBD, vape zone ban case at Coastal Carolina University

The South Carolina Supreme Court heard arguments Thursday morning on a Myrtle Beach zoning ordinance case in front of an audience at Coastal Carolina University.

Over a hundred students, staff and community members were present to hear the case and have the opportunity to ask the justices questions after.

In August 2018, the city of Myrtle Beach passed a zoning ordinance, creating an Ocean Boulevard Entertainment Overlay District — OBEOD, prohibiting the sales of CBD products, smoke products, tobacco products and “sexually explicit” products between 6th Avenue South and 16th Avenue North.

The purpose of the ordinance, which passed with a five to two vote, was to create a family-friendly environment in an area of Myrtle Beach that relies heavily on tourism, according to court records.

In response, several beachwear and variety shops in the district, including Blue Smoke Vape Shop, Ani Creation Inc., the Myrtle Beach General Store, Pacific Beachwear, Red Hot Shoppe and others, filed a federal suit in December 2018, claiming the ordinance violated free speech, due process and equal protections.

That suit was settled in 2019, but left the city with the power to revoke business licenses if stores continued to sell tobacco, CBD and vape products.

An appeal was filed in 2020 by the businesses with Horry County Circuit Court claiming their right to sell the products was unconstitutional, according to the South Carolina Public Index.

The Myrtle Beach Board of Zoning Appeals rejected the businesses’ efforts to overturn citations that year, according to court records.

The shops contended in the appeal that the city improperly enacted the ordinance as it did not allow public comment about changes made after the first reading. The law also did not grandfather in existing businesses that had sold the products for years.

‘Their businesses changed forever’

Attorney Gene Connell, who represents the downtown shops, made the opening argument to the Supreme Court at the Lib Jackson Student Union Coastal theater.

“Their business changed forever,” Connell told the justices.

Connell argued that a number of businesses on the other side of the district’s border are able to sell the same legal products without an issue, making the ordinance arbitrary and unreasonable.

Seventeen smoke shops operate just outside the zone, according to court records.

The businesses in the district rely on these sales, Connell said.

Justices asked pointed questions about the legal foundation of Connell’s argument.

The line has to be drawn somewhere, Justice John W. Kittredge said.

One of Connell’s final points was that there was not a case in the country where a line drawn like that is legal.

Fairness isn’t a question, respondent attorney argues

Representing the City of Myrtle Beach, attorney Michael Battle said fairness wasn’t a question.

“You look at it from the zoning point of view,” he said.

He said it’s legal for a local government to decide where liquor stores and gas stations can go, and can make decisions about where products are sold and where they can’t be sold.

He reiterated that the purpose of the ordinance is to “foster a community” and promote a family-friendly beach.

The ordinance also advances a substantial government interest, he said.

When asked by justices if there was a criminal penalty for selling these products, which is otherwise legal, Battle said there was only a criminal penalty for not complying with the ordinance.

Attorney Reese Boyd, also representing the shops, said select merchants are being held to a different standard than the rest of the city, he said.

A decision was not made Thursday. Chief Justice Beatty said that a written opinion would likely be published between 30 to 60 days, although it might take less time for cases heard at the university.

Supreme Court takes questions from Coastal Carolina audience

After each side presented their arguments, members of the audience were granted a chance to ask Supreme Court Justices, as well as the attorneys, questions about their careers.

One woman asked the Supreme Court how judges are able to take their work home with them, even when there is emotional conflict.

Judges often make decisions that are not in agreement with their emotions, Justice Kittredge said. However, judges have to confront that emotional tension and “always go down the path of following the law.”

The audience member then asked Chief Justice Donald W. Beatty what makes him happy.

“Quiet,” he responded.

Justice Kaye G. Hearn, who has reached retirement age, will be replaced by Judge Gary Hill, leaving the South Carolina high court without a female justice. Hearn said she was saddened by it, but was optimistic about the diversity of South Carolina courts.

“I believe in the system of electing judges,” she said.