STATEMENT OF ISSUES ON APPEAL

STATEMENT OF THE CASE

On October 30, 2006, the City Council of the City of Greenville adopted Ordinance 2006-91 amending the City Code provisions on smoking in public places.  The Respondents in this proceeding filed on December 5, 2006, a complaint challenging Ordinance 2006-91 as constitutionally invalid and in conflict with the general law of the State and seeking declaratory and injunctive relief against enforcement.  Simultaneously, the Respondents filed notices and motions for a temporary restraining order and a preliminary injunction. 

The Greenville County Circuit Court, Hon. John Few presiding, issued a written communication denying the temporary restraining order on December 29, 2006, and the Circuit Court set a hearing date of January 2, 2007, to hear arguments on the issuance of a preliminary injunction.  On December 29, 2006, the Petitioner filed an answer.  Arguments were held before the Hon. John Few on January 2, 2007, in regard to the preliminary injunction.  The Court denied the Motion for a preliminary injunction, and with the consent of the parties, provided that the parties would file any additional memoranda or briefs within ten days for a decision on the merits soon thereafter.  On March 8, 2007, the Trial Court issued an order declaring Ordinance 2006-91 unconstitutional and in conflict with the general law of the State and issuing a permanent injunction against its enforcement.

The petitioner filed a motion to alter or amend the judgment under Rule 59(E) SCRCP on March 9, 2007.  On April 3, 2007, the trial court issued an Order denying the motion, and the Clerk of Court entered that order on April 12, 2007.  The Petitioner filed a notice appeal on April 16, 2007.

ARGUMENTS

I.  GREENVILLE’S SMOKING ORDINANCE BEARS A RATIONAL RELATIONSHIP TO GOVERNMENTAL POLICY VESTED IN MUNICIPLITES AND THE STATE CLEAN INDOOR AIR ACT DOES NOT PREMEPT OR CONFLICT WITH THE ORDINANCE.

The City of Greenville like all municipalities has the authority to exercise powers in relation to the markets and the health and safety of the public.  S.C. Code Ann. § 5-7-30 (2004).  In 1987, Greenville was the first municipal government in the state to pass an ordinance regulating smoking in public places, Ord.1987-79, codified as Greenville City Code § 16-161 et seq. That ordinance applied to government owned buildings, theaters, office buildings, and restaurants; it exempted some locations, including bars, and it authorized designated smoking areas in restaurants and office buildings.

Three years later the General Assembly enacted the Clean Indoor Air Act, Act 503 of 1990, which was codified as Chapter 95 of Title 44 of the South Carolina Code of Laws (the “Clean Indoor Air Act”).  Thereafter that act was amended twice, once in 1994 by Act 289 and once in 1996 by Act 445.  The parties agree that the 1994 act is not germane to this case.

In July, 2006, the Surgeon General of the United States published a report confirming and substantiating the toxic and carcinogenic effect of secondary smoke breathed in by persons who are not smoking, and it pointed out the public health risks of the situation.  The Greenville City Council then considered adopting new legislation designed to address the public health risk by extending the scope of locations protected against the harmful effects of secondary smoke. In a public hearing and in public meetings the City Council heard the warnings of local oncologists, cardio vascular specialists, and pulmonary specialists of the impact of smoking and secondary smoke upon their patients. They reaffirmed the findings of the Surgeon General with reference to their own experience and professional study. Parents complained of the impact of secondary smoke on their children, especially those with pulmonary related medical issues, and described how it limited their participation in public life.  Citizens articulated frustration at having to smell and breathe secondary smoke.  City Council also heard from bar owners about perceptions on loss of business.  (City Council Transcript of Hearings and Meetings) (R. pp. 190-258). On October 30, 2006, the City Council adopted Ordinance 2006-91 (the “Ordinance”), which expanded the number of locations, including bars, where smoking is not allowed, and it eliminated altogether provisions for designated smoking areas in restaurants and office buildings. The Respondents initiated this litigation alleging the Ordinance is preempted by and conflicts with the general law of the State.

The general law of the State on the topic of smoking is the Clean Indoor Air Act, S.C. Code, § 44-95-10, et seq. (2002).  The Ordinance has a broader scope of coverage than the Clean Indoor Air Act.  The State’s act covers governmental buildings, elevators, arenas, theaters, public schools, child care facilities, and public transit other than taxis. The Ordinance covers the same locations as well as most non residential buildings, including bars and restaurants, and the outdoor locations of stadiums and special events permitted on public property, such as the Christmas Parade, Friday Night Jazz on Main Street, and Shakespeare in the Park.  City Council’s decision to extend the protection against the hazards of secondary smoke to these places bears a rational relationship to the scope of the lawful objective to be achieved: public convenience and necessity, public health and safety, and nontoxic work-places.  See general powers and authority granted to municipalities under the Home Rule Act in S.C. Code Ann. § 5-7-30 (2004). “The determination of whether a classification is a reasonable one for the legislative body and will be upheld if it is not plainly arbitrary and there is a reasonable hypothesis to support it.”  Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 531, 476 S.E.2d 477, 480 (1996).  Great Deference must be given to the purpose, means, and classifications selected by a legislative body such as City Council.  “A municipal ordinance is a legislative enactment and is presumed to be constitutional.”  Sunset Cay LLC. V. City of Folly Beach, 357 S.C. 414, 593 S.E.2d 462 (2004); Whaley v. Dorchester County Zoning Board of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1999); Bibco Corporation v. City of Sumter, 332 S.C. 45, 504 S.E.2d 112 (1998).  Local ordinances and regulations may touch upon the same subject matter as state statutes and regulations.  See Hospitality Association of South Carolina, Inc. v. Charleston County, 320 S.C. 219, 464 S.E.2d 113 (1995).  No language contained in the Clean Indoor Air Act specifically prohibits local laws from addressing the health and convenience issues related to inhaling secondary smoke exhaled by others. See Chapter 95 of Title 44. Thus, there is no express preemption contained in the State Clean Indoor Air Act to preclude the City of Greenville from adding to the Act’s provisions to insure public and work place health and safety.

Nor does the Clean Indoor Air Act present a circumstance of implied field preemption. “Under implied preemption, an ordinance is preempted when the state statutory scheme so thoroughly and pervasively covers the subject so as to occupy the field or when the subject mandates statewide uniformity.”  South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 629 S.E.2d 624 (2006), at 397, 628. See also Denene Inc. v. City of Charleston, 352 S.C. 208, 574 S.E.2 196 (2002) and Hospitality Association of South Carolina, Inc. v. Charleston County, supra. The statutory framework for the Clean Indoor Air Act is simple. The entire act is set forth in six sections in less than three pages of text.  Only a single code section identifies places in which the act must apply: See Section 44-95-20.  Thus, it does not “thoroughly and pervasively” cover the subject; it addresses a limited part of a larger problem.  This state act therefore “does not manifest a clear legislative intent to control all aspects” of the subject area. Quoted phrase is from South Carolina State Ports Authority v. Jasper County, supra at 398, 629.  Nor is the subject one which mandates statewide uniformity.  Individual property owners can and do set up additional standards of restricting smoking on their premises and have for years.  Buildings are stationary; they do not move from jurisdiction to jurisdiction. Each local jurisdiction can place additional restrictions just as individual property owners can without undermining the core framework of the Act.  Travelers in the United States are accustomed to a wide variation in state and local laws pertaining to smoking.  Moreover, the Ordinance requires that locations be reasonably posted of their no smoking status so that users are on notice as to the prohibition. In short, the Clean Air Act establishes a foundation, not a ceiling; and the Ordinance builds on that foundation.

There is no implied conflict preemption in the operation of the Ordinance and the Clean Indoor Air Act.  Nothing a person does to comply with restrictions in the  Ordinance will conflict with the requirements of the Clean Indoor Act.  Nothing a person does to comply with the restrictions in the Clean Indoor Air Act will conflict with the Ordinance. The Ordinance -as amended- has a penalty allowed by the State Clean Indoor Air Act.  If anything, having the Ordinance in operation helps set a standard of expectations among members of the public that enhances not inhibits compliance with the state law; any one who complies with the municipal ordinance is assured of being in compliance with state law.  When there is no express preemption, field preemption, or implied conflict preemption in the statutory provisions contained in the State’s Clean Indoor Air Act, the Ordinance falls within the protected parameters of validity set forth last year in the majority opinion of South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 629 S.E.2d 624 (2006).

Thus, the Ordinance in protecting work places and public places in general against the hazards of secondary smoke is an exercise of municipal power affecting the health, safety, and convenience of the public. The City Council is vested with the authority to enact the Ordinance under the Home Rule Act.  City Council chose a method that has a rational relationship to the legitimate end to be achieved. The Ordinance touches upon the same subject matter as the Clean Air Act, but that Act does not preempt further action in the subject matter by local governments either by express or implied preemption.  The ordinance is therefor presumed to be constitutional.

II.  THE TRIAL COURT ORDER MISCONSTRUES THE PURPOSES OF ACT 445 OF 1996 WHEN IT EXTRACTED A PROVISION INTENDED BY THE GENERAL ASSEMBLY FOR PROHIBITING THE TRANSFER OF TOBACCO PRODUCTS TO MINORS AND MAKES IT APPLY TO THE CLEAN INDOOR AIR ACT.

In 1996 the General Assembly passed Act 445.  That Act on its face did two separate and distinct things: (1) it amended the Clean Indoor Air Act, and (2) it amended a criminal statute prohibiting the distribution of “tobacco products” to minors. Act 445 is divided into five sections; two apply to the Clean Indoor Air Act, two apply to providing tobacco products to minors, and the last one provides for an effective date. 

The two sections pertaining to the Clean Indoor Act are Section 1 and Section 4. Section 1 amends S.C. Code § 44-95-20 (2002), which identifies where under the scope of state law it is unlawful “to smoke” or “possess lighted smoking material.”  The amendment simply restricted an existing exemption for private offices and teacher lounges in public schools.  It limited the exemption to those which are not adjacent to classrooms and libraries.  It also made clear that Section 44-95-20 should not be interpreted to prohibit school districts from providing for smoke free campuses.  Section 4 of Act 445 states that the Clean Indoor Air Act of 1990 is to be designated as Chapter 95 of Title 44, and it lists the section numbers to be contained in that chapter. The provisions of Section 4 thus reaffirmed the existing codification of the Clean Indoor Air Act and specified what provisions it is to contain.

The two sections of Act 445 which pertain to the statutory framework dealing with transferring “tobacco products” to minors are Section 2 and Section 3.  Transferring tobacco products to minors had been against the law for sometime under S.C. Code §16-17-500 (2003). 

An examination of the two sections of Act 445 related to the transfer to minors of tobacco products will provide insight into their purpose and scope. First, Section 2 of Act 445 added four entirely new code sections to the existing statutory framework of transferring  tobacco products to minors, and it is clear from their face that the purpose of the additions and revisions was to address the prerequisites set by the Federal Government for certain grant funds.  The Federal Government in the early 1990’s began making states implement tougher enforcement of their statutes and report their efforts to limit the availability of “tobacco products” to minors as a condition of receiving federal grants for Substance Abuse Programs.  See provisions of 42 U.S.C. 300x-26, which is referenced in Section 16-17-503 as adopted by Act 445.  The new provisions contained in sections of 16-17-501, 16-17-502, and 16-17-503 track the enforcement and reporting duties set forth by Congress in 42 U.S.C. 300x-26.  Second, Section 3 of Act 445 amended the existing Section 16-17-500 to revise the penalties for the offense, thereby demonstrating additional diligence in enforcement measures as anticipated by 42 U.S.C. 300x-26.  Nothing in Sections 2 and 3 of Act 445 references “smoking,” “lighted smoking material,” or locations which are covered or exempted from prohibitions on smoking.        

Notwithstanding these distinct purposes separately set forth in Act 445, the Trial Court Order extracted a sentence which the act itself assigned to code sections governing the distribution of tobacco products to minors and then applied the effect of the sentence to the Clean Indoor Air Act. The sentence reads, “Any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation,” and it is now codified as the second sentence in S.C. Code § 16-17-504(A) (2003), just as was provided for in Section 2 of Act 445.   According to the Trial Court Order, that sentence in that context precludes a municipal ordinance from prohibiting “smoking” and the use of “lighted material” to places not specifically itemized in the Clean Indoor Act. In support of that proposition, the Trial Court Order presents the reader with five postulations as to what could or could not be the case in its effort to support its proposition as to what the General Assembly did mean.  (Ct. ord., 11-14) (R. pp.12-14).

Interestingly, the Trial Court Order passes over important evidence of legislative intent found on the face of the applicable statutes. The sentence in question comes from a statutory code section which is one of five code sections which were grouped together by the General Assembly.   The grouping’s purpose is to restrict the capacity of individuals to make available tobacco products to minors and to assure reporting and enforcement measures sufficient to continue federal funding of Substance Abuse Programs. S.C. Code §§ 16-17-500 – 16-17-504 (2003 and Supp. 2006).  The passage of these provisions followed the Congressional enactment of the requisites for receipt of such funds in Pub. L. 102-321; see annotation in 42, USCA § 300x-26.  By contrast, the sole purpose of the Clean Indoor Air Act is “to accommodate the needs of nonsmokers to be free from exposure to tobacco smoke while in public indoor places.”   See the first whereas clause of Act 503 of 1990.  Significantly, the legislative intent to limit the scope of Section 16-17-504(A) is seen in the opening sentence of the section, which immediately precedes the sentence receiving attention from the Trial Court Order.  The opening sentence reads, “Sections 16-17-500, 16-17-502, and 16-17-503 must be implemented in an equitable and uniform manner throughout the State and enforced to ensure eligibility for and receipt of federal funds or grants the State receives or may receive relating to the sections.” The scope of applicability of Section 16-17-504 is limited by its own terms to the named code sections, all dealing with the transfer of tobacco products to minors and no other topics.  In short, limited scope of the language in Section 16-17-504 is shown by the lead sentence of the section and its clear linking to a very few provisions on a single topic.

In stretching the language of Section 16-17-504 to the Clean Indoor Air Act, the Trial Court Order also ignores that Act 445 itself identifies what code sections should be contained in the Clean Indoor Air Act.  Section 4, which lists the code sections which the General Assembly intended to be contained in the Clean Indoor Air Act, lists only six sections 44-95-10 through 44-95-60.  When presented an opportunity to include the restrictive language of Section 16-17-504.  Thus, at the time the General Assembly was creating the prohibitive language of Section 16-17-504 for the stated purposes, it was simultaneously listing what sections make up the Clean Indoor Air Act. 

The two statutory frameworks have differing penalties.  A violation of the Clean Indoor Air Act has always subjected an offender to a fine of not less than ten nor more than twenty-five dollars.  No increases occur for subsequent violations. See Act 503 of 1990 and S.C. Code Ann. § 44-95-50 (2002).  Act 445 set penalties for a violation of Section 16-17-500 on an increasing scale for subsequent offenses, rising to penalties for third and subsequent offenses at a fine not less than one hundred dollars, or imprisonment of not less than sixty days nor more than one year, or both.  There is a noticeable difference between the two.  Such wide divergence in penalties is not indicative of an intent that the two statutory frameworks should work hand-in-glove with one another.

The Trial Court Order’s omission of addressing statutory purpose contravenes directives on statutory construction from South Carolina’s Appellate Courts. The Supreme Court has repeatedly made clear that attaching meaning and intent to phrases and sentences means placing them in the context of the purposes of the particular statutory framework of which they are a part. “We should consider, however, not merely the language of the particular clause being construed, but the word and its meaning in the conjunction with the purpose of the whole statute and the policy of the law.”  Whitner v State, 328 S.C. 1, 492 S.E.2d 777 (1997), at 6, 79.  “The language must also be read in a sense which ‘harmonizes with its subject matter and accords with its general purpose.”  Municipal Association of South Carolina v. AT&T Communications of the Southern States, Inc., 361 S.C. 576, 606 S.E.2d 468 (2004).  “A statute should not be construed by concentrating on an isolated phrase.” South Carolina  Ports Authority v. Jasper County, supra at 398, 629, citing Laurens County School Districts 55 and 56 v. Cox,  308 S.C. 171, 417 S.E.2d 560 (1992).

Finally, it is a mistake to read Section 16-17-504 as precluding altogether municipal and county ordinances from touching upon the subject matter to which it pertains. The fact that the code section references “any laws, regulations, and ordinances” is evidence that the General Assembly anticipated there could be other legislation on the same subject. The statue does not say that such laws are repealed, prohibited, or even “superseded” by Section 16-17-504.  It simply says that they can not supersede the sections in the statutory framework to which Section 16-17-504 applies.  According to Black’s Law Dictionary (8^th ed. 2004), “supersede means to annul, make void, or repeal by taking the place of.”   The Ordinance does not annul, make void, or repeal either the Clean Indoor Air Act or the provisions on the distribution of tobacco products to minors. 

Thus the Trial Court Order fails to recognize the distinct purposes of the two statutory frameworks and the different terminology used in each.  The order makes no reference to the nature of the completely separate components of Act 445, its itemization of sections to be included in the Clean Indoor Air Act and it specification of the code sections to which Section 16-17-504 applies. The Trial Court Order does not compare the stated purposes of the two separate statutory frameworks and does not reference how their provisions relate to the purposes. The order substitutes its own paradigm of  hypothetical  negatives of  what the act could not mean for the Supreme Court’s directive  that phrases are to be read in the context of statutory purpose. Its analytical approach inspects trees without surveying the forest. As a result, the order extracts a code section from its intended framework and applies it to separate one.  The consequence for the City of Greenville and members of the public is that the Ordinance is declared to be invalid and its enforcement enjoined.  The Trial Court Order’s failure to construe Act 445 in accordance with rules of construction set out by the Supreme Court deprives the City of the exercise of its lawful authority, and it deprives the public of the protection to which it is entitled.

III.   THE TRIAL COURT ORDER FAILED PROPERLY TO APPLY THE MANDATE OF SOUTH CAROLINA CONSTITUTION ARTICLE VIII, SECTION 17 THAT POWERS OF LOCAL GOVERNMENT  BE LIBERALLY CONSTRUED IN THEIR FAVOR.

The South Carolina Constitution mandates, “The provisions of this Constitution and all laws concerning local government shall be liberally construed in their favor.  Powers, duties, and responsibilities granted local government subdivisions by this Constitution and by law shall include those fairly implied and not prohibited by this Constitution.”  S.C. Const. art. VIII, § 17.  The Trial Court Order makes reference to this section but limits its application to whether the City of Greenville had been delegated authority to address health and safety issues under S.C. Code Ann. § 5-7-30 (2004).  Instead, it relies upon S.C. Const. art. VIII, § 14 dealing with general law provisions which shall not be set aside, and in so doing The Trial Court Order did not recognize that the two constitutional provisions must be read in conjunction with one another. 

The Trial Court Order acknowledges the existence of Article VIII, Section 17, but says that the provision relates solely to whether the City of Greenville had been delegated authority under S.C. Code § 5-7-30 (2004), to act in the subject matter; and it did not apply the doctrine to whether the municipality is preempted from  acting upon the subject matter.  “That section [Art. VIII, § 17] relates to the first step of a challenge such as this. See Denene, 352 S.C. at 212, 574 S.E. at 198.  See Riverwoods, LLC v. County of Charleston, 349 S.C. 378, 383 563 S.E.2d 651, 654 (2002).  In this case, the Plaintiffs concede the City’s power is broad enough to enact this ordinance.  Therefore, Article VIII, Section 17 is not an issue.”  Tr. (Ct. ord., 16) (R. p. 17, line 8).  The Trial Court Order’s version of the two step process is contained in Tr. (Ct. ord., 5-6) (R. pp. 6-7). The Trial Court Order’s reference to Denene, and to Riverwoods shows that it did not grasp the full breadth of the Supreme Court’s analysis in Denene or lack of parallel circumstances in Riverwoods.

The reference to Riverwoods has limited applicability to this case. The issue in Riverwoods was whether the State’s enabling statute authorized the action taken by a county.  Generally, the State does not levy a property tax itself.  The Constitution allows local governments to do so, provided they do so in accordance with uniformly required statutes of the General Assembly.  S.C. Const. art. X, § 2.  The county had created a classification for exemption from real property tax increases that was not uniform. The sole issue in Riverwoods was the scope of delegated authority.  In this case the  Respondents and the Trial Court  Order recognize the scope of  power delegated to a municipality by S.C. Code § 5-7-30 (2004), and there is not a disputed issue on the breadth of delegation.  Riverwoods, therefore, did not involve discussions of the State preempting a field in which it also was an actor, i.e. a governmental body levying a real property tax.  It did not involve preemption as it arises when the State and local government are both acting directly but separately with affected individuals.  Thus relying on Riverwoods for the proposition that Article VIII, Section 17 is limited to determining issues of preemption is not applicable to this case.

Denene, supra, by contrast is clearly a preemption case, not a dispute on the extent of delegated authority.  It involved the interaction of a complex set of state statutes and regulations which pertain to establishments licensed to sell beer and wine.  The pervasive state framework included some limitations on the hours of operation. The municipal ordinance further restricted the hours of sale, by prohibiting the sale of beer and wine after 2:00 AM at establishments licensed by the State.  Both the state and municipal regulations touched upon the same subject matter and impacted licensed establishments directly.  In the first step of analysis of the municipality’s authority to act, The  Supreme  Court in Denene, supra, did not  limit its inquiry to whether a power was granted under  S.C. Code  § 5-7-30 (2004); instead the Supreme Court  in  its first step of analysis of municipal authority looked straight on  at the  preemption issue. See Section I of Denene supra, at 212 -214, 198-199.  Assessing whether preemption exists is fundamental to the first step of deciding whether a local government has authority to act.  Liberally construing that authority means doing so in the context of preemption concepts.  The directive of Article VIII, Section 17 is not restricted to itemized powers authority granted by enabling legislation, but applies to all laws concerning local government. See also Bugsy’s Inc. v. City of Myrtle Beach, 340 S.C. 87, 530 S.E.2d 890 (2000), at 93-95, 893-894, where the Supreme Court’s discussion of preemption also arises in the first step of analyzing what authority a local government has.   In short, the Trial Court Order’s proposition is that the first step of determining the validity of a local government ordinance looks only to the enabling legislation (S.C. Code § 5-7-30 (2004)) misses the full scope of what Article VIII, Section 17 is about, and it does not follow the example set by the Supreme Court. 

No doubt, Article VIII Section 17 must be interpreted in accordance with the limitations on local government as set forth in S.C. Const. art. VIII, § 14.  The Trial Court Order cited provisions of S.C. Const. art. VIII, § 14 to support its conclusion that the Ordinance contradicted the Clean Indoor Air Act.  The order says, “Ordinance 2006-91 provides that smoking in these bars and restaurants, and many other places where smoking is not prohibited under the Clean Indoor Air Act, is illegal.  Since the City has criminalized conduct that is not illegal under State criminal laws governing the same subject, the City as violated Article VIII, Section 14 of the South Carolina Constitution, and Ordinance 2006-91 is void and unenforceable.”  Tr. (Ct. ord., 15) (R. p. 16, lines 4-10).  That interpretation is a strict, not liberal, construction of powers of local government.  It is Dillon’s Rule dressed in the Home Rule clothing.

By what the Supreme Court has said, “As general rule, additional regulation to that of State law doe not constitute a conflict therewith.” Denene, supra, at 214, 199, quoting Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, at 553,397 S.E.2d 662.663.  “If either is silent where the other speaks, there can be no conflict between them. Denene, supra at 214, 1999.  See also McAbee v. Southern Ry. Co., 166 S.C. 166, 164 S.E. 444 (1932).  In short, while the Trail Court order says that it has acknowledged Article VIII, Section 17, its actual analysis reveals a very limited deference to local government and its concerns.  The analysis appears to be Dillon’s Rule dressed in Home Rule clothing.

IV.  THE RESPONDENTS FAILED TO SHOW THE ORDINANCE WAS UNCONSTITUTIONAL WITH PROOF BEYOND A REASONABLE DOUBT.

When the Respondents attacked the Ordinance, they challenged its constitutionality.  A municipal ordinance is a legislative act and is presumed to be constitutional. Whaley v. Dorchester County Zoning Board of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1999); Town of Scranton v. Willoughby, 306 S.C. 421, 412 S.E.2d 424 (1991). “A legislative enactment will be sustained against constitutional attack if there is any reasonable hypothesis to support it.”  Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, at 429, 593 S.E.2d 462, 469 (2004).  Moreover, “Ordinances are presumed constitutional and their unconstitutionality must be proven beyond a reasonable doubt.”  Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 476 S.E2d 477 (1996), citing Rothschild v. Richland County Board of Adjustment, 309 S.C. 194, 420 S.E.2d 853 (1992).  See also Town of Scranton v. Willoughby, supra. The Trial Court Order acknowledged the standard exists but said that it is not relevant in this instance because the standard applies when there are questions of fact.  Tr. (Ct. ord., 15). But there were no issues of fact reflected in the cases in which the Supreme Court has applied the standard, in particular Sunset Cay, Peoples Program for the Endangered Species, and Willoughby.  Issues of law, like issues of fact can be subject to standards of proof.  Recognizing the presumed constitutionality  of the Ordinance, its relation to the purposes of the state law on the same subject matter, and the lack of conflict  between the Ordinance and the provisions of the  State’s Clean Indoor  Act, one sees the  Respondents failed to meet their  duty to prove the ordinance unconstitutional beyond a reasonable doubt.

Language in the Trial Court Order shows that the Court in its own view was not dealing with absolute certainties in its analysis:  “While this is a complicated and difficult questions, I agree with the Plaintiffs’ argument that the 1996 Act expressly preempts Ordinance 2006-91.”  Tr. (Ct. ord., 10) (R. p. 11, lines 9-10). “The use of the word “supersedes” makes it difficult to discern the meaning of the statue.”  Tr. (Ct. ord., 13) (R. p. 14, lines 20-21).   These phrases at best show the Trial Court was struggling with the issues, and they do not reflect the certainty associated with “proof beyond a reasonable doubt.”  Nor could the Respondents ever meet their burden for all the reasons set forth in this Brief.

CONCLUSION

State law does not preempt the field of protecting people against the harms of secondary smoke.  The City of Greenville supplemented the State’s protections through the Ordinance, which is not preempted by state law and does not conflict with it.  The Trial Court Order extracted a provision of law intended for the regulation of providing tobacco products to minors and reassigned the provision to the Clean Air Act.   It made the reassignment without reference to the intended purposes of the respective statutory frameworks.  The Order did not properly apply the constitutional directive to construe all laws pertaining to local governments liberally in their favor. It did not hold the Respondents to their duty to prove beyond a reasonable doubt the alleged unconstitutionality of the Ordinance.  The Trial Court Order’s declaratory judgment should be set aside and its permanent injunction against the Ordinance should be dissolved.

September       , 2007
Greenville, South Carolina