By Paul Gable
Horry County Council is currently considering two ordinances that appear to be attempted end runs around state law and with the probability they will both be declared unconstitutional when challenged.
One of those ordinances deals with establishing “fireworks free zones” by resolution of county council “in addition to those designated fireworks prohibited zones” under state law.
The other ordinance states the “County Council desires to protect minors” by adding additional requirements and monitoring for ‘child oriented’ businesses by attempting to root out potential sexual predators before issuing business licenses.
In a county whose politicians profess to be so very “conservative”, these ordinances are vast expansions of governmental regulation into the private sector. And just because a new law is passed, there is no guarantee that less fireworks will be discharged in a given area or children will be more protected from potential predators.
The county doesn’t have the resources to effectively enforce the provisions of either ordinance.
Having ordinances that are unenforceable or illegal drafted and put into the legislative process is a failure on the part of county senior staff.
While council sets policy and staff carries out that policy, staff members are not excused in this process from failing to point out to council what is bad or illegal policy. In the case of these ordinances, we have both bad and illegal policy. Why do we have a county legal staff, for example, if this is not the case?
There is already a clear provision in state law to establish fireworks prohibited areas and there is no provision for a local government to expand on that law. The fireworks industry has never, to date, challenged a city ordinance prohibiting the discharge of fireworks within the city limits. That doesn’t mean that those ordinances are legal. They are not.
However, I have spoken with representatives of the fireworks association and been assured if this county ordinance establishing fireworks free zones without following the requirements of Section 25-35-175 of state law, the association will challenge the ordinance in court and may include challenges to city ordinances currently prohibiting fireworks discharge.
That is a can of worms county council should think seriously about before opening it.
The proposed ordinance for increased business license requirements includes requirements for check of each employee on the sex offender registry. However, the S. C. Supreme Court ruled nine months ago that the state registry of sex offenders was unconstitutional and directed the General Assembly to change the sex offender registry law to bring it into compliance within 12 months. Those 12 months are up on June 9, 2022 and no changes have been made to the law to date.
Therefore, the county ordinance requires use of a state law already deemed unconstitutional. Why does the county attorney believe the proposed ordinance will not be declared unconstitutional? And, how will changes to that law, if completed, affect the constitutionality of the county ordinance?
Even if those constitutional hurdles are overcome, the county Business License Department does not have the resources to check if businesses are in compliance with the provisions of the ordinance.
Additionally, by passing the additional business license requirements with regard to sexual predators, is not the county opening up its civil liability if an unlawful act is committed on a minor by some pedophile who may work at one of these businesses?
This is an election year. Ordinances are often proposed to help the election prospects for incumbents. With these two ordinances, I submit both helping and hurting incumbents is on the table.
To vote for either will probably result in votes from some constituents but increased expense of taxpayer dollars attempting to enforce and defend ordinances that are very clearly bad policy and probably unconstitutional.
To vote against either could draw the ire of constituents and cost votes from the many who don’t comprehend the potential legal difficulties associated with the ordinances.
County staff, especially the county attorney and administrator, should have made council members aware all of these potential problems before drafting ordinances that are extremely questionable at best.