ARGUMENTS

I.          GREENVILLE’S SMOKING ORDINANCE DOES NOT BEAR A  RATIONAL RELATIONSHIP TO GOVERNMENTAL POLICY VESTED IN MUNICIPALITIES AND THE STATE CLEAN INDOOR AIR ACT DOES PREEMPT THE ORDINANCE.

II.        THE TRIAL COURT CORRECTLY DETERMINED THE PURPOSES OF ACT 445 OF 1996 WHEN IT DETERMINED THE GENERAL ASSEMBLY EXPRESSLY PROHIBITED LOCAL GOVERNMENT FROM PASSING ORDINANCES OR REGULATIONS REGARDING SMOKING ON PRIVATE PROPERTY.

Whether secondhand smoke is good, bad or indifferent is not now, nor was it ever, an issue in this case. 

The sole issues before the Trial Court were whether the Greenville County Smoking Ordinance (the “Ordinance”) was impliedly or expressly preempted by state law and whether it violated the provisions of the South Carolina Constitution Article VIII, Section 17.  All issues were purely matters of Law.

Pursuant to 1990 Act No. 503, § 2, the South Carolina Legislature adopted the Clean Indoor Air Act of 1990. This legislation was subsequently codified.  See S.C. Code Ann. §§ 44-95-10, et. seq. (West Group. 2005).  This legislation prohibits smoking and/or the possession of lighted smoking material in, among other places, public schools and pre-schools, child day care facilities, health care facilities, government buildings, most public transportation vehicles, elevators, and auditoriums/arenas.  S.C. Code Ann. §§ 44-95-20(1)-(7) (West Group 2005).  The provisions apply to public and private child day care facilities, as well as public and private health care facilities.  See  S.C. Code Ann. §§ 20-7-2700 c, d (West Group 2005); S.C. Code Ann. §§ 44-7-130(10) (West Group 2005).  On the other hand, the Clean Indoor Air Act of 1990 does not prohibit the smoking of tobacco products and/or material in restaurants, bars, cabarets, and/or cafes.  S.C. Code Ann. §§ 44-95-10, et. seq. (West Group 2005).  It does authorize, however, the establishment of “smoking areas” and “non-smoking areas” on certain premises where the smoking of tobacco products and/or material is otherwise prohibited.  S.C. Code Ann. §§ 44-95-20, 30, 40 (West Group 2005).  A violation of the Clean Indoor Air Act of 1990  is punishable by a monetary fine of not less than $10.00 dollars and not more than $25.00.  S.C. Code Ann. §§ 44-95-50.

In 1996, pursuant to 1996 Act No. 445, Section 2 (hereinafter the “1996 Act”), the South Carolina Legislature adopted certain rules and procedures addressing the distribution of tobacco products to minors in South Carolina.  Those provisions were later codified.  See  S.C. Code Ann. §§ 16-17-500, et. seq. (West Group 2006 rev.). The 1996 Act was adopted in order to meet the requirements of federal law and ensure South Carolina’s receipt of the annual block grants/allotments.  The United States Government, by and through the Secretary of the United States Department of Health and Human Services (hereinafter the “HHS Secretary”), and through the Director of the Center for Mental Health Services makes yearly monetary grants/allotments (hereinafter the “Block Grants”) to each state, including South Carolina, for the provision of mental health and substance abuse services.  See U.S.C. §§ 300, 300x-6, 300x-7, 300x-21, 300x-33 (West Group 2004).  These Block Grants to South Carolina and the other states are made under certain designated formulae.  U.S.C. §§ 300, 300x-6, 300x-7, 300x-21, 300x-33.  Starting with fiscal year 1994 and onward, the HHS Secretary is able to make the yearly Block Grants only if the particular “state involved has in effect a law providing that it is unlawful for any manufacturer, retailer or distributor of tobacco products to sell or distribute any [tobacco] product[s] to any individual under the age of 18.” U.S.C. § 300x-26 (West Group 2004).  A state’s failure to comply with U.S.C. § 300x-26 could result in a reduction of that state’s annual grant/allotment by up to 40% of the normally allowable amount available under U.S.C. § 300x-33, U.S.C. §§ 300x-26(c)(1)-(4) (West Group 2005).  The 1996 Act makes it unlawful for a person to distribute a tobacco product sample to anyone under the age of 18 (S.C. Code Ann. §§ 16-17-502(A) (West Group 2006 rev)) and imposes a civil penalty of not more than $25.00 for a first offense, not more than $50.00 for a second violation, and not less than $100.00 for a third or subsequent violation.  S.C. Code Ann. §§ 16-17-502(C) (West Group 2006 rev.).  In addition, the 1996 Act imposed monetary and imprisonment penalties to anyone who might “sell, furnish, give, or provide any minor under the age of 18 with cigarettes, tobacco, cigarette paper, or any substitute therefore.”  S.C. Code Ann. § 16-17-500.  The penalties were (a) a $25.00 or less fine for the first offense, (b) a $50.00 or less fine for the second offense, and (c) a $100.00 or less fine or jail for a year or less, but at least 60 days, or both for the third or subsequent offense.  See S.C. Code Ann. § 16-17-500.  The legislature amended S.C. Code Ann. § 16-17-500, 501, effective on or about August 21, 2006, to change some of the penalties for violations.  See Act No. 231, § 2.  Those amendments have no role in this appeal.  The legislature did, however, designate the provisions as the Youth Access to Tobacco Prevention Act of 2006.  This legislation “must be implemented in an equitable and uniform manner throughout South Carolina and enforced to ensure the eligibility for and receipt of federal funds or grants South Carolina receives or may receive relating to those sections.” See S.C. Code Ann. § 16-17-504(A) (West Group Supp. 2005) (citing S.C. Code Ann. §§ 16-17-500, 502, 503, (West Group Supp. 2005)).

Furthermore, the 1996 Act goes beyond the issue of simply regulating smoking by minors wherein it provides that “[a]ny laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation.” S.C. Code Ann. § 16-17-504(A) (West Group Supp. 2005). Importantly, the 1996 Act states that “[n]othing herein shall affect the right of any person having ownership or otherwise controlling private property to allow or prohibit the use of  tobacco products on such property.” S.C. Code Ann. § 16-17-504(A).  The legislation further provided that “[s]moking ordinances in effect before the effective date of this act are exempt from the requirements” of [S.C. Code Ann. § 16-17-504](A).  S.C. Code Ann. § 16-17-504(B).  It straightforwardly appears that our legislature adopted the 1996 Act to comply with 42 U.S.C. § 300x-26 so as to prevent any reduction of South Carolina’s block grant/allotment authorized under 42 U.S.C. §§ 300, 300x-6, 300x-7, 300x-21, 300x-33, while, at the same time, assuming local ordinances not be allowed to affect the rights of private property owners from allowing or disallowing smoking on their property.

As demonstrated, our legislature has attempted, on a number of occasions after the 1996 amendments, including in the present legislative session, to amend one or more sections of the Clean Indoor Air Act of 1990 in order to permit local governments, like the city, the authority to pass “smoking ordinances” which ban smoking in various locations.  See e.g.: South Carolina Senate Bill 374, introduced January 27, 2005; South Carolina Senate Bill 186, April 19, 2007, version; South Carolina Senate Bill 209 introduced January 9, 2007; South Carolina Senate Bill 271 introduced January 11, 2007; South Carolina House Bill 3119 introduced January 9, 2007; and South Carolina House Bill 3639 introduced March 6, 2007.  To date, no such amendments, which would authorize local legislation like the city Ordinance, have become law.

A.    THE ORDINANCE IS PREEMPTED BY SOUTH CAROLINA STATE LAW AND IS INVALID AS A MATTER OF LAW

In South Carolina the determination of “whether a local ordinance is valid is essentially a two-step process.”  South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 394-395, 629 S.E.2d 624, 627 (2006). As this Supreme Court has stated:

The first step is to ascertain whether the county [and/or municipality] had the power to enact the ordinance. If the state has preempted a particular area of legislation, then the ordinance is invalid. If no such power existed, the ordinance is invalid and the inquiry ends. However, if the county [and/or the city] had the power to enact the ordinance, then the Court ascertains whether the ordinance is inconsistent with the Constitution or the general law of this state. South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 397, 629 S.E.2d 624, 627.

In this case, the Ordinance fails on both counts. On the one hand, it is preempted by existing South Carolina state law and, on the other, the Ordinance unconstitutionally criminalizes behaviors and/or actions otherwise allowed by state law.  There are three different ways in which South Carolina state law may preempt the Ordinance — express preemption (“Express preemption occurs when the General Assembly declares in express terms its intention to preclude local action in a given area.” South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 397, 629 S.E.2d 624, 627 – citing Wrenn Bail Bond Services, Inc. v. City of Hanahan, 335 S.C. 26, 28, 515 S.E. 2d 521, 522 (1999) ; Michigan Canners Freezers Association v. Agricultural Marketing Bargaining, 467 U.S. 461, 469, (1984); 56 Am.Jur.2d, Municipal Corporations § 392 (West Group 2000); 5 McQuillin, The Law of Municipal Corporations, § 15.18 (rev. 3d ed. 2004)) implied field preemption (“To preempt an entire field, an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way.”  South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 397, 629 S.E.2d 624, 627 (citing Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 552, 397 S.E. 2d 662, 663 (1990)), and implied conflict preemption (“Conflict preemption occurs when the ordinance hinders the accomplishment of the statute’s purpose or when the ordinance conflicts with the statute such that compliance with both is impossible.”  South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 400-401, 629 S.E.2d 624, 630 (citing Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 530, 476 S.E.2d 477, 480 (1996); State v. Coin-Operated Video Game Machines, 338 S.C. 176, 186, 525 S.E.2d 872, 877 (2000); 56 Am.Jur.2d, Municipal Corporations, § 392, 5 McQuillin, The Law of Municipal Corporations, § 15.18). Respondent has asserted, and the Court found, that the Ordinance is preempted in two of the three ways. First, pursuant to the doctrine of “express preemption”, Respondents contend that the 1996 Act, working in conjunction with the Clean Indoor Air Act 1990, expressly preempts and/or prohibits any attempt by a local government, such as the city, to pass an anti-smoking ordinance. Secondly, under the doctrine of “implied field preemption”, Respondent contended that the South Carolina Legislature intended the Clean Indoor Air Act of 1990to completely occupy the field of indoor smoking legislation such that no local ordinances could touch upon the subject of indoor smoking in any way.

Via “express preemption”, our legislature may expressly prohibit any local law from touching upon a certain subject. South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 397, 629, S.E.2d 624, 627 (citing Wrenn Bail Bonding Service, Inc. v. City of Hanahan, 335 S.C. 26, 28, 515, S.E.2d 521, 522 (1999)); Michigan Canners Freezers Association v. Agricultural Marketing Bargaining, 467 U.S. 461, 469 (1984); 56 Am.Jur.2d, Municipal Corporations, § 392 (West Group 2000); 5 McQuillin, The Law of Municipal Corporations, § 15.18 (rev. 3d ed. 2004).  That is the current status of the law as it relates to smoking ordinances. The legislature has expressly prohibited the city, or any other local governing body, from enacting legislation touching on the issue of indoor smoking.  Existing state laws can only be read to support the conclusion that the legislature has determined that indoor smoking is a statewide issue which is best addressed by consistent statewide legislation. Consequently, state law has foreclosed the possibility of a patchwork of inconsistent local ordinances. It is up to the legislature not the judicial system, to authorize local governing bodies to enact laws regulating indoor smoking.

In 1996, the legislature passed 1996 Act No. 445. The 1996 Act accomplished two separate, but related, objectives relating to indoor smoking and tobacco. On one side, the 1996 Act amended the Clean Indoor Air Act of 1990. The title of the 1996 Act reads “CRIMES – TOBACCO – SELLING TO MINORS; CLEAN INDOOR AIR AMENDMENTS”. On the other side, the 1996 Act promulgated and codified S.C. Code Ann. § 16-17-504. The very language of S.C. Code Ann.§ 16-17-504 expressly preempts any attempt by a local government such as the city, to regulate indoor smoking. Consequently, S.C. Code Ann. § 16-17-504 rendered the Ordinance illegal, invalid, and unenforceable.

(a) Breadth And Scope of S.C. Code Ann. § 16-17-504

The Trial Court correctly concluded that even though S.C. Code Ann. § 16-17-504 addressed the implementation of laws prohibiting the transfer of tobacco products to minors and that the legislature placed S.C. Code Ann. § 16-17-504, in the “crimes and offenses” section of the South Carolina Code, could not be interpreted in such a way as to ignore the plain language of the entire Act. The Trial court correctly notes that any other interpretation would render § 16-17-504(B) superfluous.

South Carolina law provides, in pertinent part, as follows:

(A)  S.C. Code Ann. § 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 the eligibility for and receipt of federal funds or grants the state receives or may receive relating to the sections. Any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation. Nothing herein shall affect the right of any person having ownership or otherwise controlling private property to allow or prohibit the use of tobacco products on such property.

(B) Smoking ordinances in effect before the effective date of this act are exempt from the requirement of subsection A.  S.C. Code Ann. § 16-17-504.

The legislature adopted S.C. Code Ann. § 16-17-504 by and through the 1996 Act, the very same act which specifically amended the Clean Indoor Air Act of 1990.  Moreover, the legislature used very broad and expansive language in S.C. Code Ann. § 16-17-504(A) so as to indicate that it intended S.C. Code Ann. § 16-17-504 to apply to issues beyond the simple prohibition of furnishing tobacco products to minors. As is apparent, the first sentence of S.C. Code Ann. § 16-17-504(A) relates directly to the consistent and statewide implementation of S.C. Code Ann. § 16-17-500, 502, 503 in order to fully ensure the state’s eligibility for and receipt of the annual federal block grants/allotments. 42 U.S.C. § 300x-26. Thereafter, the              second sentence, the one at issue here, then expressly changes the scope and application of S.C. Code Ann. § 16-17-504(A).  The second sentence reads: “any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation.”  S.C. Code Ann. § 16-17-504(A). Had the legislature intended this language to relate solely to the furnishing of tobacco to minors, there would have been no need to use the very broad language of “[a]ny laws, ordinances, or rules enacted pertaining to tobacco products…” S.C. Code Ann. § 16-17-504(A).  Clearly, the Ordinance pertains to tobacco products as it outlaws their use in almost all commerical locations in the city.  The legislature could have easily specifically limited the scope of S.C. Code Ann. § 16-17-504(A) simply to the prohibitions against transferring tobacco products to minors by saying something to the effect of “[a]ny laws, ordinances, or rules enacted pertaining to furnishing tobacco products to minors….”   In furtherance of and in conjunction with, the Clean Indoor Air Act of 1990, the legislature specifically addressed “smoking ordinances”, local laws, and the rights of private property owners. In this state, a statute must be interpreted in such a way that each portion of it has some legal meaning or effect.  See Lee v. Thermal Engineering Corp., 352 S.C. 81, 94, 572 S.E.2d 298, 305 (Ct.App. 2002) (“Each word, clause, sentence, and section of a statute should be given meaning.”).  See also TNS Mills, Inc. v. South Carolina Department of Revenue, 331 S.C. 611, 620, 503 S.E.2d 471, 476 (1998) (Courts “must presume the [L]egislature did not intend a futile act, but rather intended its statutes to accomplish something.”).

In addition, the legislature, by adopting S.C. Code Ann. § 16-17-504(B), specifically   exempted existing smoking ordinances from the requirements of S.C. Code Ann. § 16-17-504(A). The legislature recognized that any pre-existing smoking ordinances violated S.C. Code Ann. § 16-17-504(A) because they would “supersede state law or regulation” pertaining to tobacco products and the rights of those owning private property. See S.C. Code Ann. §§ 16-17-504(A), (B).  Any other interpretation renders the S.C. Code Ann. § 16-17-504(B) exemption to preexisting smoking ordinances completely superfluous and unnecessary. See Lee v. Thermal Engineering Corp., 352 S.C. 81, 94, 572 S.E.2d 298, 305 (Appellate courts “presume that the [L]egislature did not insert idle verbiage or superfluous language in [a] statute.”).  See also TNS Mills, Inc. v. South Carolina Department of Revenue, 331 S.C. 611, 620, 503 S.E.2d 471, 476.  Also, smoking ordinances would deny the “right” of individuals “having ownership” or otherwise controlling private property to allow or prohibit the use of tobacco products on such property.  See S.C. Code Ann. § 16-17-504(A),(B).

(b) Ensuring The Continued Flow of Federal Dollars

One of the important purposes of the 1996 Act in promulgating S.C. Code Ann. § 16-17-500, et. seq. was, hopefully, to ensure the continual flow of the federal block grants/allotments to South Carolina authorized by and through 42 U.S.C. § 300x21. In fact, the applicable federal law required South Carolina to outlaw furnishing tobacco products to minors.  See 42 U.S.C. § 300x26.  South Carolina complied with 42 U.S.C. § 300x21’s federal mandate through S.C. Code Ann. §§ 16-17-500, et. seq.  Under this federal mandate, South Carolina law provides that “it shall be unlawful for any person to sell, furnish, give, or provide any minor under the age of 18 years with cigarettes, tobacco, cigarette paper, or any substitute therefore.”  S.C. Code Ann. § 16-17- 500.  Taking South Carolina’s need to ensure the flow of the federal block grants/allotments it is clear from S.C.Code Ann. § 16-17-500, et. seq. that the legislature has decided that no local ordinance could possibly change S.C. Code Ann. § 16-17-500 prohibitions. For one thing, a local ordinance purporting to authorize providing tobacco products to a minor is absolutely preempted by S.C. Code Ann. §16-17-500.  The legislature clearly intended to completely occupy the field regarding the furnishing and/or prohibition from furnishing tobacco products to minors.  If not, federal law would negatively affect the block grants/allotments.  See generally 42 U.S.C. § 300x26.  Moreover, a local ordinance cannot legalize something otherwise illegal under state law.  Cf. Conner v. Town of Hilton Head Island, 314 S.C. 251, 254, 442 S.E.2d 608, 609 (1994) (citing City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569 (1991)) (“…a municipality may not impose a greater punishment than that provided under state law for the same offense.”).  Additionally, any local ordinance seeking to enlarge the scope of S.C. Code Ann. § 16-17-500, such as to prohibit indoor smoking by adults, criminalizes actions which are not otherwise illegal under South Carolina law. That type of local ordinance is, by its very nature, unconstitutional.  See generally Conner v. Town of Hilton Head, 314 S.C. 251, 254, 442 S.E.2d 608, 609; City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569.

S.C. Code Ann. § 16-17-504 Must Be Read Expansively in Order to Render All of its Provisions More Than Mere Surplusage

Under well-accepted and well-settled South Carolina law, all local authorities, whether counties or municipalities, are prohibited from adopting and/or enforcing a local ordinance that addresses the furnishing of tobacco products to minors. Given the current state of the law, there was no need for the legislature, in either S.C. Code Ann. § 16-17-500 or any other statute, to expressly preempt such a local ordinance dealing with furnishing tobacco products to minors. Consequently, the only way that S.C. Code Ann. § 16-17-504(A)’s second sentence (“Any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation.”) has any effect or legal impact is if the sentence is read expansively so as to apply to any general local government anti-smoking ordinances such as the Ordinance at issue herein.  In addition, if the legislature intended S.C. Code Ann. § 16-17-504(A) to only apply to furnishing tobacco products to minors, then the final sentence of S.C. Code Ann. § 16-17-504(A) would be completely unnecessary.  “Nothing herein shall affect the right of any person having ownership or otherwise controlling private property to allow or prohibit the use of tobacco on such property.”  This could not be the case as “statutes ‘should be so construed that no word, clause, sentence, provision, or part shall be rendered surplusage, or superfluous.’”  Abraham v. Palmetto Unified School District No. 1, 343 S.C. 36, 48, 538 S.E.2d 656, 662 (Ct.App. 2000) (citing Pike v. South Carolina Department of Transportation, 332 S.C. 605, 618, 506 S.E.2d 516, 523 (Ct.App. 1998) (quoting Matter of Decker, 322 S.C. 215, 219, 471 S.E.2d 462, 463 (1995)).  If S.C. Code Ann. § 16-17-504(A) was indeed solely limited to prohibiting the furnishing of tobacco products to minors then S.C. Code Ann. § 16-17-504(A) could not, in any way, affect “the right of any person having ownership or otherwise controlling private property to allow or prohibit the use of tobacco products on such property.” As with the second sentence of S.C. Code Ann. § 16-17-504(A), the only way that the sections final sentence has legal meaning and effect is if S.C. Code Ann. § 16-17-504(A) application extends beyond the issue of furnishing tobacco products to minors and, in turn, affects local government anti-smoking ordinances such as the Ordinance at issue herein.

Given the well-settled law “that statutes ‘should be so construed that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous’”, Abraham v. Palmetto Unified School District No. 1, 343 S.C. 36, 48, 538 S.E.2d 656, 662 (citing Pike v. South Carolina Department of Transportation, 332 S.C. 605, 618, 506 S.E.2d 516, 523 (quoting Matter of Decker, 322 S.C. 215, 219, 471 S.E.2d 462, 463 (1995)) the legislature clearly intended to prohibit local smoking ordinances so as to prevent an unmanageable patchwork of inconsistent laws. Obviously, given the federal mandates of 42 U.S.C. §§ 300, et. seq., contradictory laws from varying municipalities and counties would certainly threaten South Carolina’s entitlement to the federal block grants/allotments.

The Trial Court correctly determined that the Ordinance was invalid and this Supreme Court

must affirm that decision in all respects.

2.  Implied State Law preemption

The Ordinance purports to ban all indoor smoking in all work spaces and work places of any employer who has a single employee.  In a slight concession to private property owners, the Ordinance exempts smoking in private residences and therefore, the city currently permits its residents to smoke in the privacy of their own homes.  See City of Myrtle Beach v. Juel P. Corp., 344 S.C. 43, 543 S.E.2d 538 (2001) (ordinances in derogation of natural rights of persons over their property are to be strictly construed as they are in derogation of the common law right to use private property so as to realize its highest utility).  As this Supreme Court is aware, where there is a conflict between one or more state statutes and a local ordinance, the local ordinance is void as a matter of law.  Wrenn Bail Bond Service, Inc. v. City of Hanahan, 335 S.C. 26, 515 S.E.2d 521, 522 (1999).  Such a conflict exists when a local ordinance’s conditions, express or implied, are inconsistent and irreconcilable with state law.  See Municipal Association of South Carolina v. American Telephone & Telegraph Communications of Southern States, Inc., 361 S.C. 576, 606 S.E.2d 468 (2004). 

As noted previously, our legislature has already moved forcefully into the field of smoking regulations through passage of the Clean Indoor Air Act of 1990. Our legislature, with certain exceptions, has expressly prohibited smoking in public schools, child day care facilities, health care facilities, government buildings, elevators, public transportation vehicles, public arenas, public theaters, and public performing arts centers.  See S.C. Code Ann. §§ 44-95-20(1)-(7) (West Group 2004 and West Group Supp. 2006).  Most importantly, however, our legislature found it both unnecessary and undesirable to prohibit smoking in either bars, restaurants, retail food stores, retail stores, cabarets, cafes, public and private pool halls, or bowling alleys.  See S.C. Code Ann. §§ 44-95-20(1)-(7) (West Group 2004 and West Group Supp. 2006).  The fact the legislature made a reasoned determination where it was going to prohibit smoking and, in turn, where smoking was permitted, as expressly indicated in the 1996 Act, demonstrates that the legislature considered the possibilities and decided accordingly.  Byrd v. Irmo High School, 321 S.C. 426, 433, 468 S.E.2d 861, 865 (1996) (citing Trayco, Inc. v. United States, 994 F.2d 832 (Fed.Cir. 1993)) (“Where a statute expressly enumerates the requirements on which it is to operate, additional requirements are not to be implied.”).  Our legislature has decided, on a statewide basis, to leave the decision to ban or not to ban indoor smoking in the hands of each owner and/or controller of private property.  See S.C. Code Ann. § 16-17-504(A).  The legislature decided, however, not to leave that decision in the hands of the city or any other local government.

Our legislature has extensively regulated indoor smoking and use of tobacco products on a statewide basis. The scope and breadth of the legislation impliedly preempts all local legislation in that area. As noted by our Supreme Court, in South Carolina State Ports Authority v. Jasper County, (South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 629 S.E.2d 624, 630), “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, 397, 629 S.E.2d 624, 627 (2006) (citing Denene, Inc., v. City of Charleston, 352 S.C. 208, 213, 574 S.E.2d 196, 199).

Additionally, the Office of the Attorney General of the State of South Carolina has, on at least three separate occasions, opined that the Clean lndoor Air Act of 1990 has statewide applicability and demonstrates that the state legislature intended the Clean Indoor Air Act of 1990 to be comprehensive and to completely occupy the field after its adoption. The opinions were issued both before and after the passage of the 1996 Act.

The Attorney General, in February 1990, addressing pending legislation which ultimately became the Clean Indoor Air Act of 1990, noted that the state legislature could if it wished, “preempt further regulation in the same matter by local political subdivisions”.  See South Carolina Attorney General’s Opinion dated February 27, 1990 (1990 WL 599171).  In this opinion, the Attorney General referred to another opinion which had been issued February 9, 1990.  See South Carolina Attorney General’s Opinion dated February 9, 1990 (1990 WL 599171).  A legal opinion issued by the Office of the South Carolina Attorney General is persuasive authority.  Branch v. City of Myrtle Beach, 332 S.C. 575, 579-580, 505 S.E.2d 925, 927 (Ct.App. 1998) (citing Anders v. South Carolina Parole & Community Corrections Board, 279 S.C. 206, 305 S.E.2d 229 (1983)), reversed on other grounds, 340 S.C. 405, 532 S.E.2d 289 (2000).  In December 1990, the Attorney General, addressing the then-recently enacted Clean Indoor Air Act of 1990, noted that our legislature “intended the Act to have statewide applicability and that local political subdivisions would be prohibited, at least implicitly, from further regulation of smoking in public indoor places”.  See South Carolina Attorney General’s Opinion dated December 5, 1990, p.4 (1990 WL 4824563).

Most recently, on January 26, 2006, the Attorney General addressed the City of Mt. Pleasant’s proposed “smoking ban” ordinance in relation to the Clean Indoor Air Act of 1990. See South Carolina Attorney General’s Opinion  dated January 26, 2006 (2006 WL 269614).  The Attorney General’s Opinion noted the “City [of Mt. Pleasant] would not be authorized to enact an ordinance requiring smoke free restaurants within the corporate limits as restaurants are not specifically provided as locations in which smoking is prohibited”.  See 01/26/2006 S.C.A.G. Opinion, p.2 (2006 WL 2696142).  The Attorney General again made reference to the 12/05/1990 S.C.A.G. Opinion.  As a side note, the Attorney General has issued a number of other legal opinions addressing the applicability of the Clean Indoor Air Act of 1990.  See eg.; South Carolina Attorney General’s Opinion dated July 23, 1990 (1990 WL 599260) (application to the Richland County Recreation District); South Carolina Attorney General’s Opinion dated February 15, 1991 (1991 WL 474743)(application as to open partitioned workstation and to complete smoking ban in government buildings); South Carolina Attorney General’s Opinion dated February 2, 1998 (1998 WL 115506) (application to ban smoking, including smokeless tobacco, at the Citadel); South Carolina Attorney General’s Opinion dated September 27, 2005 (2005 WL 2652377) (application to total smoking ban at MUSC).

Pursuant to and by virtue of the Clean Indoor Air Act of 1990 and S.C. Code Ann. § 16-17-504(A), counties, cities, municipalities, and/or other local political subdivisions, like the city, are implicitly prohibited from enacting and/or otherwise adopting further regulation of smoking in public indoor places. The Ordinance is invalid and void as it directly supersedes and conflicts with South Carolina state law, specifically, the Clean Indoor Air Act of 1990, and S.C. Code Ann. § 16-17-504(A), which implicitly precludes counties, cities, municipalities, and/or other local political subdivisions from regulating indoor smoking.

III.  THE TRIAL COURT PROPERLY APPLIED THE MANDATE OF SOUTHCAROLINA CONSTITUTION ARTICLE VIII, SECTION 17.

In Palmetto Princess, LLC v. Town of Edisto Beach, (Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 631 S.E.2d 76 (2006)) this Supreme Court acknowledged that South Carolina law provides that “[e]ach municipality of the state . . . may enact . . . ordinances, not inconsistent with the Constitution and general law of this state, . . . for preserving health, peace, order and good government in it…” Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 54, 631 S.E.2d 76, 77 (quoting S.C. Code Ann. § 5-7-30 (West Group 2004) (Emphasis in original)).  Similarly, the South Carolina Constitution provides that “run enacting provisions required or authorized by this article, general law provisions applicable to the following matters shall not be set aside: . . . (5) criminal laws and the penalties and sanctions for the transgression thereof…”South Carolina Constitution art. VIII, § 14.  See generally South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 629 S.E.2d 624.

The Ordinance specifically prohibits smoking inside restaurants, cafes, cabarets and bars. Yet, smoking inside a restaurant, cafe, cabaret, and/or bar by adults has been a legal and permissible activity since South Carolina was a British Colony. Even today, smoking in such business establishments remains legal in every county and municipality in South Carolina except within the city and certain other municipalities and counties where anti-smoking ordinances have been adopted very recently.  As this Supreme Court is aware, a number of counties and municipalities in South Carolina have recently initiated indoor smoking bans.  This piecemeal approach, of course, creates the dreaded unmanageable patchwork of inconsistent and conflicting legislation.

In Palmetto Princess, LLC v. Town of Edisto Beach, the Palmetto Princess operated gambling “cruises to no-where.”  Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 51, 631 S.E.2d 76, 77.  It applied for a business license from Edisto Beach which the city rejected based upon a municipal ordinance which prohibited possession of a gambling device on a vessel operated for purposes of conducting a day cruise.  Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 51, 631 S.E.2d 76, 77.  Palmetto Princess filed suit alleging the Edisto Beach enactment violated  S.C. Const. Art. VIII, § 14.  Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 51, 631 S.E.2d 76, 77.  The Circuit Court struck down the ordinance and this Supreme Court agreed, noting that “cruises to nowhere ‘were not unlawful.’”  Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 51, 631 S.E.2d 76, 77 (citing Stardancer Casino, Inc. v. Stewart, 347 S.C. 377, 556 S.E.2d 357 (2001)).  This Supreme Court stated that “[because a gambling day cruise was a legal activity allowed, by the state, Edisto’s ordinance is unconstitutional because it made a legal activity unlawful”.  Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 53, 631 S.E.2d 76, 77 (citing Conner v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608, 609 (1994)).  This Supreme Court further recognized that “[w]here the General Assembly has occupied the field in a particular area, i.e. gambling, by describing what is and what is not proscribed, local governments are not free to alter the standards established by the General Assembly.”  Palmetto Princess, LLC v. Town of Edisto Beach, 369 S.C. 50, 53, 631 S.E.2d 76, 78 (citing Quality Towing, Inc. v. City of Myrtle Beach, 340 S.C. 29, 530 S.E.2d 369 (2000)) (emphasis added).

By enacting the Ordinance, the city altered the legislature’s standards vis-à-vis indoor smoking inside restaurants, cafes, cabarets and bars. Such activity is a criminal offense in the city, but otherwise legal through most of the State of South Carolina. If smoking is to be prohibited inside restaurants, cafes, cabarets, bars, etc. our legislature must make that decision and apply the indoor smoking prohibitions on a statewide basis. The decision cannot and should not be made by the city.

In Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608, 609 (1994) this Supreme Court acknowledged that “[u]nder S.C. Code Ann. § 5-7-30 . . ., a municipality has the power to enact ordinances ‘not inconsistent with the Constitution and the general law of this state’ [and South Carolina Const. art. VIII, § 14 . . . provides that the “criminal laws and penalties and sanctions for the transgressions thereof shall not be set aside.”  Conner v. Town of Hilton Head Island, 314 S.C. 251, 254, 442 S.E.2d 608, 609 (1994).  Based on the latter, this Supreme Court noted that it had “construed this constitutional provision to hold that a municipality may not impose a greater [criminal] punishment than that provided under state law for the same offense”.  Conner v. Town of Hilton Head Island, 314 S.C. 251, 254, 442 S.E.2d 608, 609 (1994) (citing City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569).

In City of North Charleston v. Harper, this Supreme Court addressed a situation where the City of North Charleston imposed a mandatory jail sentence, via a municipal ordinance, for the knowing possession of certain amounts of marijuana and/or hashish.  City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569.  This Supreme Court held the city’s ordinance was improper as it conflicted with state laws which gave municipal judges the discretionary authority to suspend and/or otherwise impose criminal sentences as they saw fit under the particular circumstances of each case.  City of North Charleston v. Harper, 306 S.C. 153, 157, 410 S.E.2d 569, 571 (citing S.C. Code Ann. §§ 14-25-65, 75 (West Group Supp. 2005)).

Article 8, Section 14 of the South Carolina Constitution has been continuously interpreted as mandating that state criminal laws cannot be suspended by local law and to “prohibit a municipality from proscribing conduct that is not unlawful under state criminal laws governing the same subject”. Conner v. Town of Hilton Head, 314 S.C. 251, 442 S.E.2d 608 (1994).  The South Carolina Supreme Court, in reviewing the legislative history of the amendment of Article 8, Section 14 granting home rule to Counties and Municipalities has stated:

“A special committee was created headed by John C. West to recommend these revisions.  Regarding proposed Article 8, Section 14 (which was adopted by the legislature verbatim), the West Committee commented, “There are certain fundamentals related to freedom which should be treated only by the state and should not be left to local variation or abuse.”

“One of the committee’s major concerns regarding this constitutional provision was the “local governments making an act a crime that was not crime under state law.”  2 James L. Underwood, The Constitution of South Carolina, 133, 134 (1989).  Finally, our language regarding Article 8, Section 14 and other cases shows that we have consistently interpreted that Section broader than only prohibiting local governments from adopting ordinances that conflict with state general law.” Diamonds v. Greenville County, 325 S.C. 154, 480 S.E.2d 718 (1997)

The State of South Carolina has made it illegal to smoke in certain places.  It expressly refused to make it illegal to smoke in certain other places, specifically privately owned property other than theaters, auditoriums and stadiums.  The city’s enactment of Ordinance 2006-91does exactly what our Court’s interpretation of Article 8, Section 14 prohibits, and that is to make illegal what the State of South Carolina has not made illegal although it has passed legislation in “the field”.

Under these circumstances, this Supreme Court must conclude that the Ordinance is unconstitutional and must be stricken.

IV.  THE RESPONDENTS MET THEIR BURDEN OF PROOF.

Appellants’ reliance upon a standard of proof is misplaced under the claims and issues presented in the present action. 

Appellants rely upon a line of cases involving the challenged constitutionality of various ordinances under the Due Process and Equal Protection Clauses of The Constitution where it must be demonstrated that an ordinance or statute is arbitrary and has no reasonable relation to a lawful purpose.  Those issues were not raised nor ruled upon by the Trial Court in the instant action as Respondents’ claims were that the city lacked authority to enact the Ordinance and not that the Ordinance was somehow in violation of their federal Constitutional rights.

The inquiry here is whether a Municipality has the power to adopt the Ordinance.  The Supreme Court stated, in one of the cases cited by the Appellant, “the burden of proving the invalidity of an ordinance is on the party attacking it.  Determining whether an ordinance is valid is a two-step process.  First, a Court must determine whether a Municipality has the power to adopt the ordinance.  If no power exists, the ordinance is invalid.  Sunset Cay, LLC v. The City of Folly Beach, 357 S.C. 414; 593 S.C.2d 462 (2004 S.C. Lexus 29).  That inquiry is for the Court and it either is or it isn’t, with no standard of proof applied thereto. 

Here, the Court correctly found that the first prong of the test was not met and that the city lacked the power to adopt the Ordinance at all.

FOR ALL THE REASONS SET FORTH HEREIN THE RESPONDENT SUBMITSTHAT THE WELL REASONED ORDER OF THE TRIAL COURT BE AFFIRMED.