Tag: Doctrine of Preemption

Howard Fails to Move Fireworks Ordinance Out of Committee

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.

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Council Member Bill Howard Cost His Constituents Two Years in Their Attempt to Prohibit Discharge of Fireworks in Their Neighborhoods

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.

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