Could a South Carolina county and a city inside it hold separate alcohol-permit referendums at the same 2006 general election?

Plain-English summary

In 2006, the South Carolina Attorney General read a new alcohol-permit referendum provision to allow a county and a municipality within it to call separate referendums at the same general election. Each would put its own question to voters. The provision concerned temporary permits for eligible nonprofit organizations and businesses to possess, sell, and serve alcoholic liquor by the drink.

The opinion said that if county voters approved and municipal voters rejected the measure, the resulting permits would be issued only in the county's unincorporated areas. If the municipal vote passed and the county vote failed, the permits would be issued only in the municipality. The Attorney General described this as the office's best reading of a provision that lacked clarity and could benefit from legislative clarification.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could both governments call the referendum for the same election?
A: Yes. The opinion read the new ordinance method as available to the county, the municipality, or both.

Q: Would voters see one combined question?
A: No. The Attorney General said each government's referendum question would be asked separately.

Q: What if only the county vote passed?
A: The opinion said permits authorized by that vote would be issued only in unincorporated county areas.

Q: What if only the municipal vote passed?
A: The opinion said those permits could be issued only in the municipality.

Background and statutory framework

The newly enacted provision added an ordinance method for calling a referendum to the earlier petition method. The Attorney General applied ordinary-meaning principles to the county-or-municipality wording, while acknowledging little helpful legislative history or controlling precedent for this local-option arrangement.

Citations and references

The official opinion discusses Act No. 386 and the temporary-permit provision of the South Carolina Code as they stood in 2006. The original PDF contains its precise statutory quotations.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-27-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06july27harrison.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY GENERAL

July 27, 2006

The Honorable James H. Harrison
Member, House of Representatives
P. 0. Box 11867
Columbia, South Carolina 29211
Dear Representative Harrison:
In a letter to this office you referenced a recently enacted provision amending S. C. Code Ann.
§ 61 -6-2010 which deals with the issuance of a temporary pennit allowing the possession, sale, and consumption of alcoholic liquors by the drink to "bona fide nonprofit organizations and business establishments othetwise authorized to be licensed for sales." Such provision was included in Act No. 386 which took effect June 14, 2006. As stated by you, such legislation authorizes a county or a municipality governing body to caJI a referendum as to the issuance of temporary licenses by passing an ordinance calling for the referendum. This ordinance method is in addition to the preexisting petition method. A countyormunicipalitymay, in its discretion, use either method. Such provision states

(4) In addition to the petition method of calling the referendum provided for in item (I) of this subsection, 1 a county or municipal governing body by ordinance may also call the referendum. Upon receipt of a copy of the ordinance filed with the county or municipal election commission at least sixty days before the date of the next

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'Subsection (C)(l) of such provision states that "[a] permit authorized by this section may be issued only in those counties or municipalities where a majority of the qualified electors voting in a referendum vote in favor of the issuance of the pennit. The county or municipal election commission, as the case may be, shall conduct a referendum upon petition of at least ten percent but not more than seven thousand five hundred qualified electors of the county or municipality, as the case may be." Addi tfonally, pursuant to subsection (D)( 1), " (a] municipal governing body may order a referendum on the question of the issuance of temporary permits to allow the possession, sale, and consumption of alcoholic liquors by the drink. ..(where) ... (a) parts of the municipality are located in more than one county; (b) as a result of a favorable vote in a county referendum held pursuant to this section, permits may be issued in only the parts of the municipality located in that county; and (c) the proposed referendum would authorize issuance of permits in the remaining parts of the municipality."

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The Honorable James H. Harrison
Page2
July 27, 2006

general election, the commission shall conduct the referendum in the manner provided in this section at that general election. The provisions of this item are in addition to the authority of a municipal governing body to call for a referendum under the circumstances enumerated in subsection (D).

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You indicated that at least one county is seeking to use this method of calling the referendum to approve the issuance of the temporary permits. Referencing such you have raised the following questions:

1. Can a county and a municipality within that county both call for a referendum
   using the new process in the same general election?
2. Would each entity be required to ask the question separately on the ballot, i.e., one
   question for approval in the county and one question for approval in the municipality?
3. How would the following scenarios be handled:
   a. Voters approve the referendum in the county but not the
   municipality.
   b. Voters approve the referendum in the municipality but not the county.
4. In either of the above instances, what areas, if any, can have the temporary license
   issued?
   As noted in a prior opinion of this office dated May I, 1990, " ... because local option legislation is rare in South Carolina, there ... exists no authoritative judicial precedents that instruct as to how the courts of this State would approve the inevitable question that arise when ... (legislation such as the above) .. .is actually applied." Also, similar to the situation addressed in the 1990 opinion, there is no significant legislative history that is helpful in resolving your questions. Generally, when interpreting the meaning of a statute, certain basic principles must be observed. The cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Typically, legislative intent is determined by applying the words used by the General Assembly in their usual and ordinary significance. Martin v. Nationwide Mutual Insurance Company, 256 S.C. 577, 183 S.E.2d 451 ( 1971 ). Resort to subtle or forced construction for the purpose oflimiting or expanding the operation ofa statute should not be undertaken. Walton v. Walton, 282 S.C. 165, 318 S.E.2d 14 (1984). Courts must apply the clear and unambiguous terms of a statute according to their literal meaning

The Honorable James H. Harrison
Page 3
July 27, 2006

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and statutes should be given a reasonable and practical construction which is consistent with the policy and purpose expressed therein. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991); Jones v. South Carolina State Highway Department, 247 S.C. 132, 146 S.E.2d 166 (1966). In other words, the clear and unambiguous words in a statute should be given their plain and ordinary meaning. Brown v. CountyofBerkeley, 366 S.C. 354, 360, 622 S.E.2d 533, 537 (2005). Therefore, courts must apply the plain meaning of a statute when its language is unambiguous and conveys a clear meaning. Wade v. State, 348 S.C. 255, 259, 559 S.E.2d 843, 844 (2002). As set forth, the recent amendment to Section 61-6-1020(C) plainly states that its provisions are "[i]n addition to the petition method for calling the referendum .... " It also states that "a county or municipal governing body by ordinance may also call the referendum .... " Citing the plain and ordinary meaning of such emphasized terms, the clear inference is that a new method for calling the referendum authorizing a temporary permit allowing the possession, sale, and consumption of alcoholic liquors by the drink has been provided, a method that allows for the call of the referendum by either a county or a municipality. As a result, in my opinion, either the municipality or the county may call the referendum or both could call for such. It has been determined that the word "or" may be construed as meaning "and". State v. Circuit Court of Dodge County et al., 186 N.W. 732 (Wis. 1922); Spillman v. Spillman, 84 So. 489 (La. 1920); Smiley v. Lenane, 1 N.E.2d 213 (Ill. 1936). Therefore, as to your first question of whether a county and a municipality within that county could both call for a referendum using the new process in the same general election, in my opinion, both the county and a municipality could call for a referendum. As to your next question of whether each entity would be required to ask the question separately on the ballot, i.e., one question for approval in the county and one question for approval in the municipality, in my opinion, each question would be asked separately inasmuch as both a county and municipality could call the referendum. You next asked how would the following scenarios be handled, voters approve the referendum in the county but not the municipality or voters approve the referendum in the municipality but not the county. You also asked whether in either of the above instances, what areas, if any, can have the temporary license issued. In my opinion, inasmuch as the newly enacted provision allows for the calling of the referendum by either a municipality or a county, or both, if the voters approve the referendum in the county but not the municipality, then the permits authorized by the referendum would be issued only in the unincorporated areas of the county. Likewise, ifthe voters approve the referendum in the municipality but not the county, the permits authorized by the referendum could only be issued in the municipality. This restriction on the applicability of a favorable vote would be consistent, in my opinion, with the stated purpose of the newly enacted amendment of providing a method of calling the referendum by a county or a municipal governing body, a method in addition to the previously authorized petition method for calling a referendum. The provision in subsection (D) of Section 61-6-20 IO which provides for a referendum on the question of the issuance of temporary permits following a favorable vote in a county which impacts

The Honorable James H. Harrison
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July 27, 2006

on a municipality, parts of which are located in more than one county, is inapplicable to the question inasmuch as newly enacted subsection (C)(4) specifically states that "[t]he provisions of this item are in addition to the authority of a municipal governing body to call for a referendum under the circumstances enumerated in subsection (D)." (emphasis added). The above response is our best reading of the newly enacted provision. I caution that the provision lacks clarity and any ambiguity could be addressed by further legislative clarification.

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With kind regards, I am,
Very truly yours,

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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'RObertD.COOk

Assistant Deputy Attorney General