North Myrtle Beach responds to beach gear lawsuit, says plaintiff knowingly violated law for over a year

NORTH MYRTLE BEACH, SC (WMBF) - A lawsuit over beach gear filed against the City of North Myrtle Beach earned both the city and the plaintiff extra attention, although the city does not comment on pending litigation - until now.

North Myrtle Beach issued its response to the lawsuit Friday, which states a preliminary injunction would reward the plaintiffs for breaking the law.

In mid-July, the North Myrtle Beach City Council held an emergency executive session to discuss a lawsuit involving Derek Calhoun and his right to sell and rent beach gear through his company, Cherry Grove Beach Gear.

RELATED | Amid lawsuit, growing fines, Cherry Grove Beach Gear fights to stay open

The legal fight came amid a city ordinance banning businesses other than the city from renting beach wares on the beach. In July, city council voted to amend that ordinance stating that no businesses, other than the city’s own rental service, can leave items unattended on the beach overnight.

Chapter 5, Beaches and Waterways, of the Code of Ordinances of North Myrtle Beach, revising Section 5-24, makes it illegal for any entity other than the municipal beach service to place, set or leave upon any equipment or other items on the beach between the hours of 7:00 p.m. and 8:00 a.m.

“This is basically to clarify that if you could take your chairs out and sit on the beach from 7 p.m. to 8 a.m. if you want to but please take them with you when you leave the beach,” said Marilyn Hatley, the mayor of North Myrtle Beach.

Hatley explains the rule is in place so public works can clean and clear trash from the beach before the crowds arrive for the day.

According to Calhoun, council members stated at the July 12 meeting, the previous ordinance’s intention from 2007 was not to have businesses operate on beaches. He also mentioned that, according to the wording, his business adjusted its services to the ordinance as it read prior to the July 18 amendment.

Calhoun’s lawsuit claims an amended ordinance prohibited him from placing his beach rental equipment on the beach for customers daily, with his business receiving citations daily.

According to the City, Calhoun has known since April 2021 that City law prohibits delivery and set up of sold or rented beach equipment.

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The City’s response, issued Monday, states, in part:

“On April 3, 2021, Beach Patrol Manager Munro Reed encountered chairs and umbrellas set up on the beach with signage placed in the sand next to them stating ‘Cherry Grove Beach Gear.’ (Reed Aff. ¶ 12). Mr. Reed contacted Mr. Calhoun, who admitted that he had set up the rentals. (Id.) Mr. Reed “explained that this was not allowed under” Code § 5-14. (Id.)

Mr. Calhoun apologized and asked if he could come remove the items that afternoon; and Mr. Reed accepted this resolution of the problem. (Id.) Later that same day, Mr. Reed emailed Mr. Calhoun and included a copy of Code § 5-14. (Id. ¶¶ 13-14 & Ex. A). He also advised Mr. Calhoun to contact Revenue Manager Sarah Clayton (now Sarah Wood) with any questions. (Id. Ex. A).”

Beginning on April 9, 2021, Wood and Calhoun exchanged emails, in which it appeared the issue was resolved, or headed in that direction, until the summer of 2022.

“At some point after these communications, Plaintiffs changed their minds about complying with the law. On June 3, 2022, City police officer Sean Downey spoke with Mr. Calhoun regarding “an ongoing issue” of CGBG delivering and setting up beach equipment in violation of Code § 5-14. (Reed Aff. ¶ 15 & Ex. B). Mr. Calhoun admitted CGBG was delivering equipment and setting it up on the beach.”

During this time, Calhoun was issued at least one warning and several citations.

The City says Calhoun knew for over a year that Code § 5-14 prohibits delivery and set up of beach equipment and had been warned of citations his business continued set up operations.

The City also said Calhoun was made aware Code § 5-24 had been amended to establish delivery and set are illegal.*

Calhoun said he does not look to stop fighting anytime soon, but he’s also fearful he could potentially lose his business.

“It’s scary,” said Calhoun. “It’s scary for myself and it’s scary for my family, the uncertainty. Can we keep our business?”

Stay with WMBF News for updates.

*Code § 5-24 was further amended in July 2022 by adding the phrase “so as to interfere with beach cleaning and/or beach concession operations” after “(collectively, Beach Wares)” and by revising subsection (e), concerning removal of unattended items. (Ex. 9 (Agenda Item 6G, City Council Meeting, July 18, 2022)).

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