By Paul Gable
Horry County Council, at its regular meeting Tuesday night, referred Ordinance 155-2021, dealing with the establishment of “Fireworks Free Zones” in the county, back to the county Public Safety Committee for further study before considering third reading of the ordinance.
If the ordinance ever passes third reading, it appears inevitable it will be struck down by state courts because of the legally settled Doctrine of Preemption.
State law, section 23-35-175 (c), states “an owner, a lessee or managing authority of real property may establish a Fireworks Prohibited Zone by (1) filing a Discharge of Fireworks Prohibited Agreement with the law enforcement agency having jurisdiction over the subject property.”
The Doctrine of Preemption simply stated holds if the law of a higher government authority, in this case S. C. Code sec. 23-35-175(c), preempts the law of a lower government authority, in this case Horry County Ordinance 155-2021, then the law of the lower government authority is declared invalid.
Or, in this case, it appears the procedure for establishing a “Fireworks Prohibited Zone” in sec. 23-35-175(c) of state law preempts the procedure for establishing a “Fireworks Free Zone” in county Ordinance 155-2021.
Why has county attorney Arrigo Carotti not informed council of this probable result during council discussions of the ordinance?
It would seem stopping the ordinance now, since the procedure for fireworks prohibition already exists in state law, would be preferable to passing third reading of the ordinance only to see it struck down in state court after thousands of dollars of taxpayer money is spent trying to defend the indefensible.
During council discussion of the ordinance, District Two council member Bill Howard told council he had spent two years meeting with HOAs and obtaining over 1,000 signatures from residents on a petition calling for fireworks to be prohibited in the Lake Arrowhead and Ocean Creek areas of his district.
The entire issue could have been settled two years ago if Howard simply explained to the residents he met with the proper procedure, under state law, for establishing a Fireworks Prohibited Zone in their community.
In a word, it is “Nuts” that Howard wasted two years, in coordination with the county attorney, attempting to jump through hoops to create a county ordinance to prohibit fireworks discharge when a proper procedure to accomplish exactly the same result already exists in state law.
According to his own statements from the council dais, Howard spent two years trying to convince voters in his district that he was doing something for them, with respect to fireworks discharge, when the solution already existed in state law. Sounds more like a reelection ploy than actually trying to help his constituents.
Howard, who has won two terms on county council by very slim vote margins, could have helped his constituents achieve their desired goal two years ago if he just advised them to follow state law.
Such is not good government!