Why Aren’t There Any Smoke Shops in Myrtle Beach?

If you have walked through downtown Myrtle Beach lately, you might be wondering, “Where did all the smoke shops go?”

If you want to buy a vape, a pipe, or even CBD products, you won’t find them in the downtown area, because the City of Myrtle Beach banned them…

Below, we’ll take a look at what happened to the smoke shops in Myrtle Beach, including:

• When they were banned,
• Why they were banned, and
• What the SC Supreme Court had to say about it.

Where are the Vape Stores and Smoke Shops in Myrtle Beach?

All smoke shops and vape stores have been banned in the historic downtown Myrtle Beach area – specifically, within the “Ocean Boulevard Entertainment Overlay District” (OBEOD), a zoning district created by the city within which certain retail businesses and merchandise were excluded including:

• Smoke shops and tobacco stores,
• Any “tobacco paraphernalia,”
• Products that contain CBD,
• Tobacco products if they are more than “incidental,” or 10% of the store’s inventory, and
• “Sexually oriented material.”

If you are looking for a nice pipe (for your tobacco), a CBD gummy, or a smoke shop, you will need to look outside of the OBEOD – its boundaries stretch for about two miles and cover the historic downtown area of Myrtle Beach.

You can still buy cigarettes or other tobacco products within the restricted zone, but you will find them in convenience stores, not smoke shops.

Why Did Myrtle Beach Ban Smoke Shops?

The stated reasons for the ban on smoke shops in Myrtle Beach (and a map of the affected area) are found in Section 1807.A and include statements that are, at best, fairly debatable, and, at worst, transparently false, including:

• Smoke shops are unseemly and unsafe,
• They are not suitable for children and families,
• They negatively affect tourism in the area,
• The sale of the prohibited merchandise is “repulsive to mothers and fathers
  in the care of their children,”
• They negatively affect property values and cause blight (there is no evidence of this), and
• Tobacco and CBD might be sold to minors (there is no evidence that it is or was being sold to minors).

The City of Myrtle Beach is understandably concerned about how the beach is no longer seen as a “family-friendly” vacation destination, and they need to do something to improve the city’s image given the sharp rise in media coverage of violent crimes and murders in the city…

It looks a bit like the smoke shops are the scapegoat for the city’s inability to control our crime rates, doesn’t it? Can they do that?

According to the SC Supreme Court, yes, they can…

The SC Supreme Court Found that the Ban is Constitutional

In Ani Creation, Inc. v. City of Myrtle Beach Board of Zoning Appeals, decided on April 19, 2023, the SC Supreme Court reviewed a host of constitutional challenges brought by affected businesses and concluded that the ordinance is constitutional:

Appellants are nine of the twenty-five affected stores located in the area, and each was issued a citation by the city’s zoning administrator for failing to comply with the zoning overlay ordinance. Following a complicated legal battle, appellants raised a host of constitutional challenges to the zoning overlay ordinance. However, the circuit court found the ordinance survived appellants’ veritable barrage. Appellants directly appealed that decision to this Court. We now hold that, under this Court’s long-standing precedent, the overlay ordinance did not impermissibly spot zone the city’s historic downtown area. We additionally find the overlay ordinance is a constitutional exercise of the city’s police powers. We therefore affirm the decision of the circuit court and uphold the validity of the ordinance.

The Court denied the businesses’ claims, finding that:

• The ordinance was enacted in compliance with the procedure set forth in C. Code Ann. § 5-7-270 (2004) (requiring that municipal ordinances be “read two times on two separate days with at least six days between each reading” before being adopted and having the force of law),
• There was no equal protection violation – there was no traditional or reverse spot zoning, and the OBEOD boundaries were not arbitrary or irrational (analyzed under the rational basis standard because there is no suspect class involved in the claim),
• The ordinance does not violate Due Process – there is an opportunity for hearing and appeal, and the “amortization period” is sufficient to bring businesses into compliance with the ordinance,
• There was no violation of the Takings Clause – there might have been, but the plaintiffs did not present any evidence of the ordinance’s impact on the value of their businesses or properties, and
• There was no conflict with state law – although prohibited merchandise is legal under state law, there are no criminal penalties for violation of the ordinance (the penalty is suspension or revocation of your business license).

Got Axelrod?

Zoning laws can have a profound impact on the operation of your business – in some cases, completely prohibiting categories of businesses from certain areas of the city.

If you are considering opening a business in Myrtle Beach, SC, and need assistance choosing the right business entity, drafting and filing your incorporation documents, negotiating vendor or real estate contracts, choosing a location for your business, or applying for a zoning variance, call your business law attorney on the Axelrod team at 843-258-4478 or complete our contact form for an initial consultation to find out how we can help.