By Paul Gable
For the past year, Horry County Council member Bill Howard has attempted to convince the rest of county council to pass a county fireworks ordinance in order to silence some constituents in Howard’s district.
Howard’s latest attempt to move proposed County Ordinance 155-2021 forward was at the Horry County Public Safety Committee meeting of August 8, 2022.
Howard has been aided in this effort by Horry County Attorney Arrigo Carotti who, according to his own statements, has been the principal drafter of the county ordinance.
The difficulty is that the proposed county fireworks ordinance violates the provisions enumerated in state law for banning fireworks from an area.
State law is quite specific. 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.”
In other words, the owner etc. of a property may designate that property as a Fireworks Prohibited Zone. But not someone else’s property!
What Howard, with Carotti’s help, is trying to do is find a way for council to establish blanket “No fireworks areas” in neighborhoods where the owners of all the properties in the area have not agreed to the ban.
In explaining the purpose of the proposed ordinance to committee members, Carotti said the ordinance would allow “county council, by separate action (separate from state law), to designate a particular area in the county a No Fireworks Area.”
Carotti referred to a recent change in the City of Myrtle Beach fireworks ordinance, which Carotti said removed criminal penalties in the ordinance, bringing the ordinance in line with state law. What Carotti failed to mention to the committee was the amendment to the Myrtle Beach fireworks ordinance removed the citywide blanket ban on fireworks use, which has always been illegal, but unchallenged.
The only remaining blanket ban on fireworks use in the county is within the city limits of North Myrtle Beach, which is illegal, but so far has remained unchallenged.
Carotti suggested possibly using an “advisory referendum” (of property owners, lessees or managing authorities) in the area covering the ban as a tool to possibly authorize such council action.
An advisory referendum is just that – advisory. It is not binding in any manner. Jt does not give council the authority to establish such a ban in the particular area to which the referendum question is put.
Under questioning by committee members why state law could not be used to establish a Fireworks Prohibited Zone in the neighborhood in which Howard desires the ban to apply, Carotti said, “The state law won’t cover the situation in Mr. Howard’s district…everyone would have to be on board to establish the fireworks prohibited zone community wide.”
Howard said using state law would allow donut holes (in the neighborhood in question) where fireworks could be used. In other words, not all the property owners, etc., in the neighborhood in question are in favor of the ban.
The proposed county fireworks ordinance has received two readings from county council but was remanded to the Public Safety Committee for further study before a third reading would be considered by council.
The simple fact, which the committee appears to now understand, is any county ordinance which goes beyond the provisions allowable in state law would be deemed illegal, if challenged in court.
The fireworks industry has already indicated the county ordinance will be challenged in court if it ever passes third reading.
The legally settled Doctrine of Preemption would seem to apply. 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.
The attempt to get committee approval earlier this month clearly blew up in Howard’s and Carotti’s faces. The ordinance failed to even get a motion to bring it to a vote.
The proposed county ordinance clearly goes beyond the provisions of state law. It is nothing more than an attempt at county government overreach by Howard, with the help of Carotti, which will certainly be struck down in state court, if it ever gets that far, causing county taxpayer dollars to be wasted in the process.