Bar owners don't have the best record when it comes to fighting City Hall 

History Repeats

Remember Cap'n Harry's Blue Marlin Bar and Grill on John Street? No? That's too bad. It was a pretty popular spot among students and F&B folks during its more than 10-year run. Then the City of Charleston passed its 2 a.m. closing ordinance, and that was the end of Cap'n Harry's.

The city's late night bar ordinance is just one of many skirmishes Charleston's bars and restaurants have found themselves dealing with over the years. Not long ago, you could still smoke a cigarette while chugging a beer inside A.C.'s. Not long before that, you didn't have to leave the bar at 2 a.m. And while bars banded together to try to knock down the laws, well, we all know how that turned out.

"What you really have to look at is does the City of Charleston have the authority to pass these types of ordinances, or is there state law that already speaks to the subject of what these businesses can or can't do?" Charleston attorney Skip Martin says of a potential late-night ordinance battle. "That's where the analyses starts."

After the 2 a.m. ordinance passed in 2000, Martin represented three bars — Trio Club, Club Tango, and Portside Cafe, all closed now — in a lawsuit against the city, but there were 15 to 20 more bars and clubs working together on the case behind the scenes. As Martin explains, the city thought it could shut down bars at a semi-decent hour and all the ills of society would magically go away. In reality, that wasn't true.

Apparently, Martin says that after the ordinance was put into place and litigation was pending, noise levels actually rose once customers were forced out of bars all at once. And just because people were going home doesn't mean the night was over, it was just relocated to living rooms and porches. Martin says there was also a sharp uptick in assaults, batteries, and muggings. Now, with thousands of people in the streets at the same time to this day, chaos ensues on a Friday or Saturday night in downtown Charleston — which basically led to the newest late night ordinance.

Another unintended consequence: Once the bars in the City of Charleston closed at 2 a.m., their drunk patrons, looking to continue the party, would jam up the James Island Connector on their way to the closest open drinking establishment. The Oasis became a hot spot for a hot minute — until James Island passed its own 2 a.m. ordinance.

Martin's 2 a.m. lawsuit lasted for years, as the case made its way from local courts all the way up to the state Supreme Court. It was an emotional rollercoaster for the plaintiffs, to say the least. "They started out very firm in their belief in their position that these issues were not caused solely by them and they were being targeted, and then as the process goes, you lose a hearing there, you lose a hearing here, they became a little frustrated," Martin says. Though the plaintiffs eventually won an injunction, it didn't last. As we're sure you know by now, the state Supreme Court ruled that municipalities had room to make laws restricting its businesses.

"Tango went first," Martin says of the bars he represented. "It was the biggest and it was a club that was a late night club. They catered a lot to the food and beverage industry ... Tango really didn't get busy until 12, 12:30 at night, so when they had to close at two, it just wiped out their business." Portside wasn't around much longer, but Trio held out until it shut its doors last year. Martin thinks his plaintiffs fought as hard as they possibly could at the time.

The bars took another blow later in the decade, when the City of Charleston passed a smoking ban in 2006. Paul Dominick represented the plaintiffs in the resulting lawsuit; while only three establishments were officially named in the case — A.C.'s Bar & Grill, Kingston Tobacco Co., and The Smoking Lamp — The Post and Courier reported back then that there were at least 15 other bars and businesses involved. In that case, Dominick explains that the issue was over whether businesses had a right to allow smoking, or whether a city or government entity had the right to regulate such a practice.

Back then, the City of Charleston (as well as other cities and towns across the state) made the argument that smoking in bars was an occupational health risk for employees. But "if people want to choose to go to a bar that allows smoking, then they ought to be allowed to go," he says. "If individual patrons don't like smoking in a bar, they could choose to go to another bar."

The smoking ban was a more complicated matter than the 2 a.m. closing, since it also took into account smoking at tobacco shops, who joined the debate, and it's hard to argue against ensuring the health of employees. Another issue here was the difference between city and county regulations, which bar owners thought could lead to unfair competition. You could have a smoke-free bar within city limits, but just across the street is a smoker's paradise because that bar's in Charleston county.

That's something that could easily come up again with this new late night ordinance.

Dominick is not sure how many of the establishments he represented closed as a result of the smoking ban, but he does point out that the plaintiff in a similar case against Sullivan's Island, Bert's Bar, blamed the ban when it went out of business soon thereafter.

"But at the end of the day, these are more political issues than legal issues," Dominick adds. "If a bar wants to win these battles, they have to win them at city council, not in the court system. That's what it really comes down to."

As he points out, the smoking ban was lost long before the first lawsuit was filed. Should downtown's bars decide to fight against the city over the late night ordinance, they will be fighting against a powerful mayor and a City Council that unanimously supported the law. "By the time you get into the court system, most ordinances are going to be presumed to be valid and the burden shifts to [the plaintiffs] to show that it's unconstitutional or an overreach of the government's authority, and that's pretty hard to do."

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