By Paul Gable
Horry County Council passed second reading of a proposed ordinance that would allow council to restrict the use of fireworks in zones of their choosing in direct violation of state law.
One would think a county government currently in the process of refunding over one million dollars of illegally collected stormwater fees would pay close attention to what it can and what it can’t do with regard to state law.
Because one thing is certain, the proposed ordinance, which would allow county council by resolution to establish fireworks prohibited zones in the unincorporated areas of the county, is in direct violation of state law.
The proposed ordinance, as written, directly contravenes both the spirit and letter of state law.
The proposed ordinance, 155-2021, sub-section c states: “County No Fireworks Areas shall be any geographic location, as determined by County Council, wherein the prohibition against fireworks under this section is deemed appropriate. Such areas may be designated only by Resolution of County Council and must state with adequate specificity the area encompassed as to be readily identifiable by the general public and Horry County officials and employees.”
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.”
State law goes on to say the zone must exhibit at least two signs, stating fireworks are prohibited visible from the street and any adjoining public property. In addition, the owner, lessee or managing authority of the property may request county council to extend the prohibited zone up to 500 feet into any adjoining public property such as a park or to the low water mark of a public beach adjoining the property.
Any property owner or group of property owners can go to the law enforcement agency of their jurisdiction and file a “Discharge of Fireworks Prohibited Agreement” for their property today without any county ordinance required to allow it.
What is not allowed is for a couple of property owners to go to county council and ask council to enact a fireworks prohibited zone which contains property to which those property owners do not hold title other than adjacent public property as outlined in state law. But, that is exactly what the proposed county ordinance would allow. Again, in VIOLATION OF STATE LAW1
Particularly interesting was a quote attributed to council member Johnny Vaught, known as “TV Johnny” to his fellow council members, on the WPDE website “If a community or a group of residents comes to its councilman and says, ‘look, we don’t want fireworks fired in our community,’; then what they’ll do is lay out a geography of that area, who lives in that area, who doesn’t live in that area, and draw a little box of whatever,” explained Vaught. “Then the county councilman will bring it before the county council, and they will pass it and that will become a fireworks-free zone.”
Vaught went on to say, “We don’t have plans for signs, but that would probably be a good idea and again, it will be complaint-driven. They will have to call a policeman and they will have to come out there.”
The quote by Vaught demonstrates complete ignorance of state law governing the establishment of fireworks prohibited zones by a two-term county council member who has filed for chairman of county council in the upcoming June primary. The county simply cannot have such a willfully ignorant council member who makes up laws and goes before the television cameras with such statements just to gain a few votes in a primary election.
Vaught is not alone in his statements. According to several sources in county government, the call for a county ordinance was initiated by council member Bill Howard who, reportedly, has some homeowners in his district who want their neighborhoods designated as fireworks prohibited areas. Howard is up for reelection this year.
And council member Dennis DiSabato is, reportedly, also attempting to assuage some homeowners in his district by pushing this ordinance.
Helping constituents is a proper job of a council member, but not when the attempt to help violates the law.
According to those same county government sources, County Attorney Arrigo Carotti has given his blessing to the proposed county ordinance. Carotti briefed council that areas restricted by this ordinance can be likened to a special tax district.
Even if someone believed that were so, and it is not, a special tax district requires 15% of the voters in the district to sign a petition requesting a referendum. The district is established by majority vote on the referendum question open to all voters in the proposed tax district.
Even among the wildest imagination, how does a fireworks prohibited district approved by resolution of county council compare?
Maybe Carotti took the easy way out reasoning that ordinances banning fireworks in city limits have stood for a number of years. However, those ordinances are just as illegal as the proposed county ordinance. They stand only because the fireworks industry has not challenged them in court.
I have spoken to members of the state fireworks association. They assured me, if this ordinance passes third reading and becomes law, the association will challenge its legality in Court and the association would likely challenge the city ordinances banning fireworks at the same time.
I submit none would stand up to a court challenge. Local governments do not have the enabling legislation that allows them to ban fireworks legally.
Seeking votes by passing an illegal ordinance that can only be given the green light by poor staff work is not worth the tens of thousands of public dollars that would be used to defend a lawsuit. Recent experience with the hospitality fee lawsuit should be enough for county council to comprehend spending taxpayer dollars in court defending avoidable lawsuits is poor public policy.
All these council members profess to be conservatives. It’s time they started voting like conservatives.