S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Bob Barnhill,
Individually and d/b/a
Bob's Watersports and
d/b/a Bob's Bikes, Respondent,
v.
City of North Myrtle
Beach, Appellant.
Appeal From Horry County
David H. Maring, Sr., Judge
Opinion No. 24881
Heard October 21, 1998 - Filed January 18, 1999
REVERSED IN PART; AFFIRMED IN PART.
Charles E. Carpenter Jr. and S. Elizabeth Brosnan,
both of Richardson, Plowden, Carpenter &
Robinson, P.A., of Columbia; and Douglas C.
Baxter, of Richardson, Plowden, Carpenter &
Robinson, P.A., of Myrtle Beach, for appellant.
Thomas A. Boland, Sr., of Florence; and Howell V.
Bellamy, Jr., of Bellamy Law Firm, of Myrtle
Beach, for respondent.
MOORE, A.J.: Respondent Barnhill commenced this action
challenging in part appellant's (City's) ordinance restricting the launching
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BARNHILL v. CITY OF NORTH MYRTLE BEACH
and beaching of motorized watercraft, including jet skis, on the public
beach. We reverse that portion of the trial court's order finding the
ordinance invalid.
FACTS
In 1992, Respondent Barnhill operated a jet ski rental business near
the beach pursuant to a business license issued by City. At the time his
license was issued, Ordinance 5-11 required that jet skis be launched or
beached only in specified areas of the beach. City subsequently amended
Ordinance 5-11 by adding subsection (c) which prohibits launching or
beaching jet skis between 9:00 a.m. and 5:00 p.m. from May 15 to
September 15 annually with the exception of government or authorized
watercraft.
After City began enforcing the new ordinance, Barnhill commenced
this declaratory judgment action challenging the ordinance's validity and
seeking an injunction against its enforcement. The case was referred to a
special referee. The referee found Ordinance 5-11(c) invalid because it
exceeded City's police power and was inconsistent with the Constitution
and general law of the State. Further, he found the ordinance violated
several federal constitutional provisions. City appeals.
DISCUSSION
1. Police power
Under S.C. Code Ann. 5-7-30 (Supp. 1997), a municipality
may enact:
regulations, resolutions, and ordinances not inconsistent with
the Constitution and general law of this State, including the
exercise of powers in relation to roads, streets, markets, law
enforcement, health, and order in the municipality or
respecting any subject which appears to it necessary and
proper for the security, general welfare, and convenience of the
municipality or for preserving health, peace, order, and good
government in it.
Under this section, municipalities enjoy a broad grant of power regarding
ordinances that promote safety. Town of Hilton Head v. Fine Liquors,
Inc., 302 S.C. 550, 397 S.E.2d 662 (1990). The exercise of a municipality's
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BARNHILL v. CITY OF NORTH MYRTLE BEACH
police power is valid if it is not arbitrary and has a reasonable relation to
a lawful purpose. Id. Under S.C. Code Ann. 5-7-140 (Supp. 1997), City's
jurisdiction includes the public beach.1
The launching and beaching of motorized watercraft are activities
that occur on the public beach. Restricting launching and beaching is
reasonably related to promoting safety during the summer tourist season
when beaches are crowded. Moreover, the restriction is reasonable since it
limits motorized watercraft only during hours when the beach is most used
by the public for swimming. We find this restriction is within City's police
power.
2. State statutes
The referee concluded Ordinance 5-11(c) was inconsistent with
statewide statutes in Title 50 that preempt regulation of watercraft on
navigable waters. See S.C. Code Ann. 50-21-870 (Supp. 1997) (no person
may operate or be in possession of a personal watercraft while on the
waters of this State after sunset or before sunrise); see also 50-21-820
(Supp. 1997) (waterskiing or similar activity not allowed between sunset
and sunrise); 50-21-110 (Supp. 1997) (no person may use motorboat,
waterskis, or similar device negligently or while intoxicated).
While we agree the State has preempted the entire field of
regulating watercraft on navigable waters as provided in Title 50, see S.C.
Code Ann. 50-21-30 (Supp. 1997),2 we find no inconsistency with City's
1 Under 5-7-140, the corporate limits of a municipality bordering the
Atlantic Ocean include the area between the high-tide line and one mile
seaward. This area is "subject to all the ordinances and regulations that may
be applicable to the areas lying within the corporate limits of the
municipality".
2 In order 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. Fine Liquors, 397 S.E.2d at 663. Section 50-21-30 provides in pertinent
part:
(1) The provisions of this chapter, and of other applicable laws
of this State shall govern the operating, equipment, numbering
and all other matters relating thereto whenever any vessel shall
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BARNHILL v. CITY OF NORTH MYRTLE BEACH
regulation of activity on the public beach.
In order for there to be a conflict between a state statute and a
municipal ordinance, both must contain either express or implied
conditions that are inconsistent and irreconcilable with each other. If
either is silent where the other speaks, there is no conflict. Wright v.
Richland County Sch. Dist. Two, 326 S.C. 271, 486 S.E.2d 740 (1997); Fine
Liquors, supra.
be operated on the waters of this State or when any activity
regulated by this chapter shall take place thereon; but nothing in
this chapter shall be construed to prevent the adoption of any
ordinance or local law relating to operation and equipment of
vessels the provision so which are identical to the provision of
this chapter, amendments thereto, or regulations issued
thereunder; provided, that such ordinances or local laws shall be
operative only so long as and to the extent that they continue to
be identical to provisions of this chapter, amendments thereto, or
regulations issued thereunder.
(2) Any subdivision of this State may, at any time, but only after
three days' public notice make formal application to the
department for special rules and regulations with reference to the
operation of vessels on any waters within its territorial limits and
shall set forth therein the reasons which make such special rules
and regulations necessary or appropriate.
(3) The [Department of Natural Resources] is hereby authorized
to make special rules and regulations with reference to the
operation of vessels on waters within the territorial limits of this State.
(Emphasis added). The plain language of 50-21-30 manifests a clear
legislative intent to preempt the entire field of regulation regarding the use
of watercraft on navigable waters. Any local regulation must in fact be
identical to State law unless authorized by the Department of Natural
Resources under subsection (2). Accordingly, the referee's ruling on
preemption is correct.
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BARNHILL v. CITY OF NORTH MYRTLE BEACH
Here, as provided in 50-21-30 (1),3 State statutes regulate only
activity "on the waters of this State" and are silent regarding activities on
the public beaches. Ordinance 5-11(c), which regulates activity on the
public beaches, is not irreconcilable with these statutes and therefore is
not inconsistent with the general law of this State.
3. State Constitution
The referee found Ordinance 5-11(c) inconsistent with article XIV,
4, of our State Constitution which provides in pertinent part:
All navigable waters shall forever remain public highways free
to the citizens of the State and the United States without tax,
impost or toll imposed ....
We disagree.
The effect of Ordinance 5-11(c) is to restrict the use of jet skis to
approximately six hours per day during the summer months. Since jet
skis cannot be operated on the waters of the State between sunset and
sunrise under 50-21-870(B)(2), application of City's ordinance results in
allowing jet ski access only from sunrise until 9:00 a.m. and from 5:00
p.m. until sunset.4
Although the complete blockage of all use of navigable water is
unconstitutional absent an overriding public interest, State ex rel. Medlock
v. South Carolina Coastal Council, supra, the public's access to navigable
water is subject to reasonable regulation. South Carolina Elec. & Gas Co.
v. Hix, 306 S.C. 173, 410 S.E.2d 582 (Ct. App. 1991). We have found no
precedent requiring that a restriction on access to navigable water be the
least restrictive means of regulating in order to pass muster as reasonable
regulation. "Reasonable" in the context of other constitutional challenges
has been defined simply as rationally related to a legitimate legislative
purpose. See Anco, Inc. v. State Health and Human Services Fin.
Comm'n, 300 S.C. 432, 388 S.E.2d 780 (1989) (substantive due process);
3 See supra note 2.
4 Pleasure boating is a protected use of navigable water under article
XIV, 4. State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C.
445, 346 S.E.2d 716 (1986); State v. Columbia Water Power Co., 82 S.C. 181,
63 S.E. 884 (1909).
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BARNHILL v. CITY OF NORTH MYRTLE BEACH
Jenkins v. Meares, 302 S.C. 142, 394 S.E.2d 317 (1990) (equal protection).
Here, the restriction on jet skis is rationally related to the legitimate goal of public safety.
Further, in Captain Sandy's Tours, Inc. v. Georgetown County Bldg.
Official, 310 S.C. 206, 423 S.E.2d 99 (1992), we upheld a county ordinance
prohibiting the commercial use of public landings. The plaintiff, a
commercial tour boat enterprise, claimed the ordinance violated its
constitutional right of access to navigable water. We found article XIV,
4, was not infringed where some access remained.
Accordingly, we hold Ordinance 5-11(c) is not inconsistent with article
XIV, 4, because it is a reasonable restriction on public access to
navigable water.5
4. Taking
The referee found that because Ordinance 5-11 allowed the
launching and beaching of jet skis at the time Barnhill obtained his
business license and began operating his rental business, he had a vested
right to use the public beach for this purpose and enactment of subsection
(c) constituted a regulatory taking. This ruling is erroneous. There is no
private vested right in a particular use of government property. Captain
Sandy's, supra (citing State Highway Dept. v. Carodale Assoc., 268 S.C.
556, 235 S.E.2d 127 (1977).
5. Equal protection
The referee found Ordinance 5-11(c) violated equal protection
because it was not enforced as to all motorized watercraft. A law fair on
its face may be shown to violate equal protection if it is intentionally
enforced discriminatorily. Butler v. Town of Edgefield, 328 S.C. 238, 493
S.E.2d 838 (1997). In this case, however, there is no evidence indicating
discriminatory enforcement of the ordinance. Accordingly, on this record,
we hold the referee erred finding an equal protection violation.
5 The referee also found the ordinance violated the federal constitution's
protection of access to navigable water. Federal law applies to activity on
navigable water that affects interstate commerce. State ex rel. Medlock v.
Coastal Council, supra. There is no allegation that the ordinance in question
here infringes on interstate commerce.
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BARNHILL v. CITY OF NORTH MYRTLE BEACH
CONCLUSION
We hold the referee erred in finding Ordinance 5-11(c) invalid. The
circuit court's order affirming this ruling is REVERSED. City's remaining
argument is AFFIRMED under Rule 220(b), SCACR. See City of
Abbeville. v. Aiken Elec. Co-op., Inc., 287 S.C. 361, 338 S.E.2d 831 (1985)
(power to franchise is delegated only by statute); Berkeley Elec. Co-op.,
Inc. v. Town of Mt. Pleasant, 308 S.C. 205, 417 S.E.2d 579 (1992)
(franchise agreement that does not meet statutory requirements is illegal).
REVERSED IN PART; AFFIRMED IN PART.
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.
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