Money, morals and the pursuit of happiness surround potential new adult business law

It was a line written by a woman on an Aug. 20 posting in the Casual Encounters category on Craigslist.org. It’s the type of thing Horry County councilmen and citizens have heard that goes on in and around adult businesses throughout the county. And it’s a part of the county those very citizens and local legislators want to eliminate to improve the image of the county and clean up its adult businesses.

Horry County’s 12 councilmen are looking over their notes from summer workshops on cracking down on the eight remaining adult businesses in unincorporated areas to gear for a public input session Tuesday. That will precede a vote that could change the landscape of edgy entertainment in the unincorporated areas of the Grand Strand.

Meanwhile, at least two attorneys for the adult businesses have penciled in trips to the McMillan Federal Building in Florence for Wednesday to file temporary restraining orders to stall the implementation of ordinances, if they pass, until a judge can hear the potential case in U.S. District Court.

The county has spent more than $37,000 in the last six months to pay Scott Bergthold – an attorney from Tennessee who is among the leading litigators of adult business law in the country — to draft two firm ordinances that county officials hope will provide a fool-proof way to keep adult businesses away from residential areas, churches and more.

‘We’ve fought the battles. We’ve not done well.’

Horry County Planning Director Janet Carter knows the battles the county has faced over the years while trying to address issues surrounding adult businesses.

“During the 15 years that I’ve been here… generally, the county has not been very successful,” she recently told a group of Carolina Forest residents who attended a community meeting about adult business ordinances. “We fought the battles. We’ve not done well.”

The county’s first gentleman’s club, Thee DollHouse, opened in 1988, and its first adult business ordinance was written in 1989. The women dancers bared their breasts and wore G-strings until the county stepped in to make them cover up. By 1994, the two sides were in court, and in December 1999, Thee DollHouse’s appeal to operate as an adult entertainment establishment was denied by the U.S. Supreme Court, but it remained open and operated as a non-adult entertainment venue.

In 1998, the Pink Pony in Garden City Beach sued Horry County after the county required a 6-foot separation between a dancer and patron and mandated a common tip jar for all gratuities. The lawsuit, which was later removed to U.S. District Court in Florence, maintained the law violated constitutional rights of equal protection and freedom of speech. Two years later, a federal judge ruled the ordinance was too broad and therefore unconstitutional.

In the early 2000s, the county went to court with Excitement Video Inc. on U.S. 501 and Seaboard Street and spent four years in litigation only for the owners to reduce the amount of adult-oriented films and abide by the law. The county tried police raids in 2004 and resurrected the ordinance fight in 2005 and 2006 to no avail.

The third and final reading of the two newest ordinances related to adult businesses is scheduled for Tuesday.

The zoning ordinance restricts adult-themed businesses to one of three zoned areas in the county – highway commercial, limited industrial and heavy industrial. It forces the businesses to be at least 1,500 feet from residential properties, churches, daycares and the like, which will effectively make every adult business in unincorporated Horry County in violation.

Council will also consider the third reading of a conduct ordinance, which prevents adult-themed businesses from being open between midnight and 6 a.m. The ordinance also sets stricter rules for businesses with viewing booths and prevents nudity in gentleman’s clubs. It also states semi-nudity is OK if employees are six feet from patrons on a stage that is at least 18 inches high.

The county’s eight active adult-themed businesses would then have 90 days to comply with the new ordinances unless some businesses challenge the legality of the ordinances, which is anticipated.

The evidence needed

Counties are not able to implement an adult business ordinance with teeth unless they have done due diligence by proving the businesses produce negative secondary effects – such as prostitution arrests and drug use – and contribute to reduced property values.

Some of the prostitution arrests Bergthold cited to County Council members as proof of negative secondary effects included prostitution sting arrests at various gentlemen’s clubs throughout Horry County in July 2011 and October 2009. He also cited a dancer arrested on prostitution charge at The Gold Club on Oct. 24, 2012, and a strip club dancer who reportedly agreed to have sex with an undercover cop at Fantails Gentlemen’s Club in July. Also in July, a dancer at Bottom’s Up Gentleman’s Club was arrested on a prostitution charge.

Horry County has gone so far as to sue and close adult businesses, saying they were public nuisances.

The county claims there were sexual acts being performed in video booths at Excitement Video adult bookstore in 2006. Paradise Restaurant & Bar was closed in 2008 because of prostitution, and Crush Gentlemen’s Club was closed in 2012 for multiple shootings.

Most recently in July, Celebrations adult bookstore was closed over claims of prostitution, sex, and drugs. In fact, a court order for permanent injunction found Celebrations was a public nuisance because “employees facilitated minor having sex with prostitute in booths on five or more occasions.”

The financial aspect

Of the 12 specific prostitution arrests cited by Bergthold in his presentation, nine resulted in convictions or guilty pleas with five additional cases still pending in court.

Those nine convictions netted a total of $3,171.97 in court fees and fines, according to court records for each of the defendants. Victim services and a conviction surcharge totaled $457, while $225 went to the law enforcement funding surcharge. Criminal justice academy training received $45, and $1,117 went to the public defender application fees and the office of indigent defense.

The state, through its assessment fees, received $642.

The county’s general fund, which will pay for the defense if the county goes into litigation for this new ordinance, collected $684.96.

On the other end, the county has paid Bergthold $3,389.10 between Feb. 23 and Aug. 14, with $34,092.55 in outstanding invoices to be paid by the county. An undetermined portion of the invoice will be covered by the county’s insurance with the Insurance Reserve Fund, said County Attorney Arrigo Carotti.

“This billing covered consultation regarding the Gold Club appeal to the [Zoning Board of Appeals], the county’s defense in the federal court Gold Club litigation, and comprehensive ordinance development [zoning and licensing],” Carotti said.

Under Bergthold’s letter of agreement, he gets paid $250 per hour and the county picks up all expenses related to his travel, which has included at least two trips from Chattanooga to Conway this summer.

The county was also represented by Conway-based Battle & Vaught. They were retained by the State Budget & Control Board, Insurance Reserve Fund under the county’s Tort Liability Insurance Policy, Carotti said.

The insurance company, however, has said it will not cover the defense of the ordinance. The county will send its attorneys bills to the Insurance Reserve Fund to determine how much of it will be covered.

Council Chairman Mark Lazarus defended spending more than $37,000 on attorneys fees and travel as a necessity to protect the public.

“If these businesses didn’t exist, we wouldn’t be spending those dollars,” Lazarus said. “We have to protect our citizens. That’s obviously against the law and we’re here to protect the law. So we have to do that, and there’s obviously a cost at doing that. If they didn’t exist or exist under stricter ordinances, then that lowers the police time that it took to investigate those cases and to have the police on the streets to handle those instead of where we need them normally.”

If the county passes the third reading Tuesday, it can effectively close adult businesses in unincorporated Horry County that are housed in more than $1.5 million worth of property on $2.2 million worth of land, according to county figures. That is, of course, if they continue to conduct business as they have been.

The eight active adult businesses employ more than 300 dancers, bouncers, servers, bartenders and adult bookstore workers and record more than $1.4 million in annual sales, according to Dun and Bradstreet, a statistical analysis company.

Legislating Morality

“No one has ever attempted to refute the thesis” of the 1998 book “Legislating Morality: Is it wise? Is it legal? Is it possible?,” says its author Norman Geisler.

Geisler is co-founder of Southern Evangelical Seminary outside Charlotte, N.C. and holds a Ph.D. in philosophy from Loyola University. He said the funny thing about the topic is the catchphrase “you can’t legislate morality,” and notes that just the opposite is true.

“It is impossible not to legislate morality,” he said in an interview from the Charlotte area. “I challenge anyone to show me some law that doesn’t have a moral principle. Every law says this is right and this is wrong. Every law is legislating morality at some time. The question is not whether we can legislate morality, the question is whose morality is going to be legislated.”

In July, area churches presented the council a petition to move the adult business ordinances out of committee and back before council members to make the ordinances law.

The separation of church and state is an age-old concept, and Geisler is often called upon nationwide to explain his beliefs.

“Would you like to live in a society where they didn’t legislate morality?” he said. “Every law is legislating morality… The constitution legislated morality and the Declaration of Independence all have moral principles inside the documents themselves. You don’t have a society unless you have some moral laws behind it.”

Geisler said, however, there is a fine line between legislating and over-legislating morality.

“What these people should be saying is you can’t over-legislate morality. You can’t legislate something that is contrary to the moral law. You can’t legislate something that really gets somebody’s freedoms and somebody’s ability to pursue happiness.”

The Pursuit of Happiness

Mike Rose’s pursuit of happiness is the drive he gets from seeing his employees succeed and getting creative with the three businesses he operates along the Grand Strand: Burger Bar & Beach Club; Rodeo Bar and Grill; and The Gold Club.

Rose is owner of The Gold Club, a gentleman’s club in unincorporated Horry County that will be impacted by the new ordinances if they pass Tuesday.

“Obviously there’s some anxiety about the third,” Rose said about the Sept. 3 council meeting. “To sit and to say it isn’t going to affect my business would probably be an incorrect statement. Will it close my business? No, it’s surely not going to close us. It’ll make us be a little more aggressive on the creative side in putting together shows and maybe make it a little more theatrical when it comes to stage presentation.”

Rose has been embroiled in a court battle with the county since it denied his request to place club similar to The Gold Club along Restaurant Row where the former Thee Dollhouse was located, near the north end of the Grand Strand. He has been called a liar and has been accused of trying to deceive county officials by applying for a bar and nightclub license and not identifying it as an adult business. But the county does not have any adult businesses licensed as such.

“That’s when they made it personal,” Rose said. “And now they say, ‘Well, we’re going to go and we’re going to make it a point to not let this club open. So we’re going to go and create all of this stir of bad business on the south end.’ That’s just wrong.”

Rose says he was wrongly denied a permit for the new club, and vows to fight it to the end.

“I didn’t want to be in federal court,” he said. “I surely didn’t want to fight the county. I had a great relationship with the county. You do almost nine years of business, you pay your taxes, you do charitable things with the police department or for different individuals in the community. You do those things because you want to give back to the community.”

Rose said he has never been cited for violation of the county’s current ordinances and has welcomed police, who have done hundreds of walk-throughs freely without him escorting them around.

“Why? Because I never worried that there’s anything going on wrong in the club,” he said. “Could there be? Yeah, of course there could be. You can’t police everything. As an operator, we have the same duty as a police officer on the road, to police our club. When an operator isn’t doing his job and it’s becoming a problem on a regular basis, then go after that operator.”

Rose said there’s a bit of frustration because it seems that some county officials do not want to sit down and hammer out ordinances amicable to all sides.

He said his Cleveland-based attorney has been flown in to talk with the county several times and will be there Tuesday.

“We bring him in to plead our case and say we don’t want to be in federal court with you guys,” Rose said, adding he wrote to all councilmen as recently as last week asking them to stall the vote to allow parties to talk. The letter also stated Rose would “withdraw our federal lawsuit with no damages and ask for no legal fees, if we could somehow help to rewrite the ordinance so that it was enforceable. So the new definition of the ordinance was good for the county, good for the citizens and good for us.”

He admits not everyone will like each other’s idea of how the new ordinance should read.

“That’s fine. But we like where this is going. Let’s sit down at a table. Not where we’re in a reading where you only have three minutes to plead your case,” he said referencing the three-minute limit at County Council meetings. “You can’t cover this in three minutes.”

As of Friday, he had not received a response.

Rose said there’s a lot of confusion in the public and among his staff that The Gold Club will close if the ordinance passes its third reading.

“That’s not true,” he said. “The Gold Club is going to open up north. We might have to put more clothes on, but the signs are still going to go up. We’re going to get that. I believe we’re going to prevail. If they’re really willing to lose county dollars possibly, well then that’s OK, I guess. We’re willing to risk our money too if we have to. We’re not going to let it go away. We’re going to go all the way to the end, whatever the cost is.”

Rose said the lawsuit “really changes gears” after Tuesday’s vote.

“Up until the third, while it’s been costly already, both to the county and to myself, after the third it becomes costly because now on the 4th we have to file an emergency [temporary restraining order] in Florence, so my attorneys will have to go to Florence to file for an injunction, so that’s costly,” he said. “Assuming we prevail on that, which we hope but you don’t know… the clubs will be able to operate as they have been with no restrictions until this lawsuit is settled. If we do prevail there, of course our federal case will move forward high speed. It’s going to get very, very costly moving forward because everyone will have to hire different experts. It can really turn into a circus when it goes into a third reading.”

If it passes and The Gold Club loses the temporary restraining order, look for it to alter its business plan, not its location.

“If there’s a change in the ordinance where we have to have more cover up on, then we’ll create more in the club theatrical,” Rose said. “We’ll get the girls to agree to do some kind of theatrical shows on the stage. Big fancy costumes. Different music. We’ll add different lighting in there.”

Still, a change in objective will likely impact his pocketbook.

“I think it’s going to hurt my business a little bit,” Rose said. “Obviously it’s going to hurt a business if Burger King couldn’t sell hamburgers anymore and McDonald’s was across the street, they would go to McDonald’s because they wanted hamburgers and Burger King would lose business. But they wouldn’t go out of business because people will eat chicken sandwiches and whatever else. They might come out of it creatively and do something different.”

He still hears rumblings from worried staff members – some of whom have been with him all nine years he’s been in business. But Rose has already begun making some interior changes like new televisions at the bar, new lights, new paint and plans for new carpet.

“It shows them we’re not going anywhere,” he said. “I believe in our case. I believe in what we do and I want our people to believe in us and I want them to see that… It’s creating an excitement. No one’s thinking about the third (reading) anymore. I’m thinking about the third and I’m not sleeping at night, but I think they’re thinking about how great this place is going to be and that we will prevail regardless of any kind of change in the ordinance.”