Source: Charlotte Observer
By: Jennifer Talhelm
(YORK, SC) — Nude dancing and other forms of adult entertainment would be outlawed or severely restricted if leaders in two York County towns follow through on their plans.
But legal experts say York and Fort Mill officials will have to be careful when they write the restrictions or they will unfairly limit free expression.
Several S.C. cities are considering changes to laws regarding adult businesses. Through zoning laws, some are attempting to restrict where businesses can locate. York is taking a more sweeping approach.
The York County town leaders say that as the area grows, they need to make sure zoning laws keep up with the times.
"It’s a continuous part of controlling growth," said Fort Mill Mayor Charles Powers. "We just want to make sure we have the citizens of Fort Mill protected as best we can by law."
The city of York began writing its ordinance last year when a local bar wanted to have a thong contest. Leaders decided they wanted a tough ordinance to prohibit such contests.
They settled on a broad ban on adult entertainment, which council members will consider in March. Already, City Council members have approved part of the ordinance, which defines nudity in explicit terms and calls adult entertainment "any business, which wholly or in part provides entertainment in which persons appear in a state of nudity in a public place."
"Certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity," the proposed ordinance says.
"I believe this ordinance is being considered in York is an effort to sustain a certain standard for our community," said Trey Eubanks, York’s city manager.
The Fort Mill Town Council watched carefully and followed suit, town attorney Bayles Mack said. The town’s ordinance already indirectly excludes adult businesses because they are not listed as a permitted use, he said.
Fort Mill leaders likely will consider defining adult businesses as York did. They may allow adult businesses in certain limited zones, or they may call them "non-permitted uses," which would limit them further, Mack said.
University of South Carolina constitutional law professor Eldon Wedlock said the towns may be heading for lawsuits unless they draft ordinances carefully.
York cites as the model for its law a U.S. Supreme Court case that allowed an Indiana town to prohibit nude dancing. But Wedlock said the case doesn’t allow towns to ban nude dancing; it allows them to prohibit public nudity. As long as a law prohibits all forms of public nudity, it may be OK, he said. A law that prohibits just nude dancing likely would be an unconstitutional restriction on free expression, he said.
"What happens is that some public official gets ahold of these cases and says, `Aha, we can ban nude dancing,’" Wedlock said. "You have to be careful about the way you’re doing it."
York County, Rock Hill and other towns across South Carolina regulate adult businesses as well. In York County and Rock Hill, such establishments may not be within about 1,000 feet of schools, churches, parks and other adult businesses. And they are allowed only in specific zones. City and county officials said they know of only one adult business, which is in Rock Hill and was set up before the zoning ordinance went into effect.
County Attorney Melvin McKeown said the county did not prohibit the businesses, in part because it’s a tricky thing to do.
"You confront a First Amendment challenge any time you do that," he said. "Trying to walk that narrow line is pretty tenuous."
