4:18-cv-03517-RBH Date Filed 01/07/19 Entry Number 10 Page 1 of 5

US DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

ANI CREATION, INC. d/b/a Rasta, ANI CASE NO: 4:18-CV-03517-RBH

CREATION, INC. d/b/a Wacky T’s, BLUE
SMOKE, LLC d/b/a Doctor Vape, BLUE
SMOKE, LLC d/b/a Blue Smoke Vape
Shop, ABNME, LLC d/b/a Best for Less,
KORETZKY, LLC d/b/a Grasshopper,
RED HOT SHOPPE, INC., E.T.
SPORTSWEAR, INC. d/b/a Pacific
Beachwear, MYRTLE BEACH GENERAL
STORE, LLC, I AM IT, INC. d/b/a T-Shirt
King, and BLUE BAY RETAIL, INC. d/b/a DEFENDANTS’ ANSWER TO COMPLAINT
Surf’s Up.

Plaintiffs,
v.

CITY OF MYRTLE BEACH, MYRTLE

BEACH CITY COUNCIL, BRENDA
BETHUNE, Individually and as Mayor of
the City of Myrtle Beach, MICHAEL
CHESTNUT, Individually and as a member
of the Myrtle Beach City Council, MARY
JEFFCOAT, Individually and as a member
of the Myrtle Beach City Council, CLYDE
H. LOWDER, Individually and as a
member of the Myrtle Beach City Council,
PHILIP N. RENDER, Individually and as a
member of the Myrtle Beach City Council,
GREGG SMITH, Individually and as a
member of the Myrtle Beach City Council,
JACKIE VEREEN, Individually and as a
member of the Myrtle Beach City Council.

Defendants.

Defendants CITY OF MYRTLE BEACH, MYRTLE BEACH CITY COUNCIL, BRENDA

BETHUNE, Individually and as Mayor of the City of Myrtle Beach, MICHAEL CHESTNUT,

Individually and as a member of the Myrtle Beach City Council, MARY JEFFCOAT,

Individually and as a member of the Myrtle Beach City Council, CLYDE

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H. LOWDER, Individually and as a member of the Myrtle Beach City Council, PHILIP N.

RENDER, Individually and as a member of the Myrtle Beach City Council, GREGG SMITH,

Individually and as a member of the Myrtle Beach City Council, JACKIE VEREEN,

Individually and as a member of the Myrtle Beach City Council (hereinafter “Defendants”)

hereby answer the Plaintiffs’ complaint for declaratory judgment, injunctive relief, and

damages:

AS TO ALL CAUSES OF ACTION

1. Plaintiffs’ complaint fails to state proper causes of action against the above named

Defendants and should be dismissed pursuant to Rule 12 (b) of the Federal Rules of Civil

Procedure (FRCP).

II. THE NATURE OF THE CASE

2. Each and every allegation of the entire complaint not hereinafter expressly admitted is

hereby denied.

3. Defendants are informed and believe this complaint seeks equitable and injunctive relief

for alleged damages resulting from the CBD Overlay ordinance enacted by the Myrtle Beach City

Council.

II. JURISDICTION and PARTIES

4. Defendants are informed and believe Plaintiffs are businesses located and doing business

in the Downtown business zone along Ocean Boulevard in the City of Myrtle Beach, South

Carolina. All corporate Plaintiffs are entities formed and existing under the laws of South

Carolina, or entities that have been admitted and are conducting business within the State of

South Carolina.

5. Defendant City of Myrtle Beach is a proper entity to be sued under 42 U.S.C. §1983. The

remaining Defendants are members of City Council and are being sued only in their official
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capacity as representatives of the City of Myrtle Beach. The remaining factual allegations in

paragraphs 1 – 12 are denied.

III. FACTUAL ALLEGATIONS

6. Defendants admit that on or about August 14, 2018, the City adopted Ordinance 2017-23 to

enact and establish the “Ocean Boulevard Entertainment Overlay District” (herein the

“Ordinance”). A copy of the Ordinance is attached as Exhibit “A” to Plaintiffs’ Complaint.

The remaining factual allegations in paragraphs 12 – 23 are denied.

IV. CLAIMS.

7. Answering the allegations in paragraphs 24 – 35 of the complaint, Defendants deny the

same.

IV. CAUSES OF ACTION

8. Answering the allegations in paragraphs 36 – 65, Defendants deny the same.

V. AFFIRMATIVE DEFENSES

Burford Abstention Doctrine

9. Defendants allege timely and adequate state-court review is available for the relief sought

by Plaintiffs, and this court sitting in equity must decline to interfere with the proceedings or orders

of state administrative agencies: (1)when there are difficult questions of state law bearing on policy

problems of substantial public import whose importance transcends the result in the case then at

bar; or (2) where the exercise of federal review of the question in a case and in similar cases would

be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial

public concern.

10. Plaintiffs’ lawsuit should be dismissed by this court pursuant to the Burford extension

doctrine.

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Immunity

11. Defendants are absolutely immune from suits for damages pursuant to the 11th Amendment

of the U.S. Constitution.

12. Individual Defendants named in the lawsuit are absolutely immune from suits for damages

for their legislative acts or their acts done in a legislative capacity.

Equitable Defenses

13. Plaintiffs’ claims for equitable relief are barred by the doctrines, laches, equitable estoppel,

judicial estoppel, unclean hands, waiver and the existence of adequate remedies at law.

14. Plaintiffs’ claims for temporary or permanent injunctive relief are barred by the principles

of equity, comity and federalism.

Standing

15. Plaintiffs do not have standing to bring their claims for temporary or permanent injunctive

relief.

Statute of Limitations

16. Plaintiffs’ claims are barred by the applicable statutes of limitations for contesting zoning

ordinances.

Case or Controversy

17. Defendants are informed and believe that Plaintiffs cannot show the existence of a

justiciable case or controversy.

Ripeness

18. Plaintiffs are seeking equitable relief and damages for events that have not yet occurred or

Plaintiffs’ claims are not ripe for adjudication.

Failure to Exhaust Administrative Remedies

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19. Plaintiff has administrative remedies set forth in the City of Myrtle Beach’s Zoning

Ordinance which should be exhausted before Plaintiffs seek the relief requested in the above

captioned lawsuit.

WHEREFORE, having fully answered the Complaint, Defendants request that the requested relief

be denied, the lawsuit be dismissed, that Defendants be awarded their costs and attorneys’ fees

pursuant to 42 USC §1988.

s/ Michael W. Battle
Michael W. Battle, Fed. ID # 1243
(mbattle@battlelawsc.com)
ATTORNEY FOR DEFENDANT
CITY OF MYRTLE BEACH
BATTLE LAW FIRM, LLC
PO Box 530
1200 Main Street
Conway, SC 29528
(843) 248-4321 (tel)
(843) 248-4512 (fax)
January 7, 2019