Myrtle Beach businesses banned from selling vape products plan to fight in U.S. Supreme Court

As tourists walk along Myrtle Beach’s Ocean Boulevard, signs of the family-friendly atmosphere city leaders want for the area abound.

Visitors can purchase everything from henna tattoos to hermit crabs with painted shells. They can order ice cream, New York-style pizza or overstuffed gyros. Take selfies in front of the picturesque Atlantic or pop into a video arcade.

But absent from the entertainment district are merchants selling sexually-explicit materials, tobacco products and CBD oils — no more than 10% of a business’ inventory can fall under those categories due to a restrictive 2018 rule adopted by city leaders aimed at controlling the aesthetics of its famed beachfront walk.

Do politicians in South Carolina’s most popular vacation spot have the power to ban those sales, or is it government overreach that tramples a business’ constitutional protection?

The U.S Supreme Court is now being asked by a consortium of downtown merchants to answer that question, despite previous rulings by judges including those on the state’s highest bench that have sided with the city.

Gene M. Connell Jr., a Surfside Beach attorney representing nine companies barred from selling such wares between 6th Avenue S. and 16th Avenue N., told The Sun News Sept. 20 that he planned to submit a motion in hopes of getting the case onto the U.S. Supreme Court’s docket.

Merchants at several of the stores listed in the lawsuit declined to comment this week.

The move follows a unanimous June 28 S.C. Supreme Court decision upholding Myrtle Beach’s prerogative to control the sale of certain goods within its 50-block Ocean Boulevard Entertainment Overlay District — the tourism heavy portion of the city that touts family-friendly experiences and shopping.

The state Supreme Court, which held oral arguments on the case in February at Coastal Carolina University, said the law is on Myrtle Beach’s side.

”The governing bodies of municipalities clothed with authority to determine residential and industrial districts are better qualified by their knowledge of the situation to act upon such matters than are the Courts,” state Supreme Court Justice John W. Kittredge wrote for the five judges, citing a 1962 case out of Greenville. “And they will not be interfered with in the exercise of their already established precedent police power to accomplish [their] desired end unless there is [a] plain violation of the constitutional rights of [the] citizens.”

The law has already been fought for years through various courts

In all 25 businesses were impacted by the city’s zoning restriction, filing a federal suit in December 2018 claiming the ordinance violated free speech, due process and equal protections.

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.

That dispute was settled in 2019, but left the city with authority to revoke business licenses if stores continued to sell the disputed goods. After the local zoning appeals board rejected merchants’ attempts to overturn citations, an appeal was filed in the 15th Circuit Court.

Judge Benjamin Culbertson upheld the city’s authority in April 2021, prompting another appeal to the state Supreme Court.