Could Lexington County define pets “at large” more broadly than South Carolina law?

Official title

Asking whether the definitions section of a county ordinance, which you say seems to be “broader” than the definitions section of a related state law, is superseded by that state law, “despite the fact that localities are permitted to enact ordinances.”

Requester

The Honorable Daniel B. Verdin, Senator, District 9; The Honorable Katrina Shealy, Senator, District 23

Plain-English summary

Two senators asked whether Lexington County's definitions of pets “at large” and “under restraint” were superseded by state definitions. The Attorney General concluded that they were not. State law then gave counties power to regulate the care and control of dogs, cats, and other animals and specifically preserved local authority to prohibit animals from running at large. The county ordinance covered dogs and cats and supplied more detailed restraint requirements for particular situations.

The opinion compared the practical effect of the two schemes. It found both aimed to keep pets from roaming freely, and said the ordinance's extra detail supplemented state law without making compliance with both impossible. It also found no conflict with the state constitution or general state law.

Currency note

This opinion was issued in 2014. 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: Did different wording for “at large” automatically invalidate the county ordinance? A: The opinion said no. It examined how the state rules and county ordinance worked together, not merely whether their definitions used identical words.

Q: Could Lexington County require particular methods of pet restraint? A: The office said the ordinance's more detailed requirements, including rules for school grounds and dangerous pets, did not conflict with state law on the facts reviewed.

Q: Had state law occupied the whole field of animal restraint? A: The opinion said no. It pointed to statutory language authorizing county animal-control ordinances and preserving county power to prohibit animals running at large.

Background and statutory framework

The office compared state restrictions on dogs and other domestic animals with Lexington County's rules for “pets,” defined there as dogs and cats. It applied the state court's preemption analysis and emphasized that “Mere differences in detail” did not alone create a conflict. Its conclusion was specific to the ordinance provisions reviewed in 2014.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-20-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/05/verdin-d-shealy-k-os-9716-5-20-14-county-ordinances-pets-at-large-00339514xD2C78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL.

May 20, 2014

The Honorable Daniel B. Verdin
Senator, District 9

404 Gressette Building
Columbia, SC 29201

The Honorable Katrina Shealy
Senator, District 23

613 Gressette Building
Columbia, SC 29201

Dear Senators Verdin and Shealy:

By your letter dated December 18, 2013 you ask whether the definitions section of a county ordinance, which you say seems to be “broader” than the definitions section of a related state law, is superseded by that state law, “despite the fact that localities are permitted to enact ordinances.” Our response follows.

L Law
A. South Carolina Law

Under South Carolina state law, “[i]t is unlawful for the owner or manager . . . of domestic animals . . . to allow animals to run at large beyond land owned or leased by him.” 2 S.C. Jur. Animals § 13. Notably, Chapters One, Three and Seven of Title 47 contain provisions prohibiting conduct akin to abandoning an animal or letting the animal run at large. For example, Section 47-1-70(A) of the Code prohibits “abandoning” an animal; Section 47-3- 50(A)(I) specifically restricts dog owners from allowing their dogs to run at large; and Section 47-7-110 forbids individuals who own or manage “any domestic animal of any description” from permitting such an animal “to run at large.” See S.C. Code Ann. § 47-1-70(A) (West 2013 Supp.) (“A person may not abandon an animal.”); S.C. Code Ann. § 47-3-50(A)(1) (West 2013 Supp.) (“It is unlawful...for any dog ... owner...or keeper to allow his dog to run at large off of property owned, rented or controlled by him[.}”); S.C. Code Ann. § 47-7-110 (1987) (“It shall be unlawful for the owner or manager of any domestic animal of any description willfully or negligently to permit any such animal to run at large beyond the limits of his own land or the lands leased, occupied or controlled by him.”).

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According to Section 47-3-10(4) of the Code, a dog is deemed to be “running at large” if it is off the premises of the owner or keeper and is not under the physical control of the owner or keeper by means of a leash or other similar restraining device.' S.C. Code Ann. § 47-3-10(4) (West Supp. 2013). Meanwhile, Section 47-7-110’s failure to define the phrase “run at large” results in the phrase being given its plain and ordinary meaning, which, according to Black’s Law Dictionary means “free; unrestrained” or “not under control.” Black’s Law Dictionary, ot Ed. 2009). Further, Section 47-1-10 defines “animal” as it appears in Chapter One of Title 47 as “a living vertebrate creature except a homo sapien” S.C. Code Ann. § 47-1-10 (West Supp. 2013); Section 47-3-10 defines “dog” for purposes of Chapter Three, Article One, of Title 47 as “all members of the canine family, including foxes and other canines” S.C. Code § 47-3-10 (West Supp. 2013); and Section 47-7-110’s “domestic animal” language, although not defined in the statute, has been interpreted as including pets such as dogs. See Hossenlopp v. Cannon, 285 S.C. 367, 370, 329 S.E.2d 438, 440 (1985) (applying Section 47-7-110’s domestic animal language to a dog bite case) unrelated statute superseded in Harris v. Anderson Cty. Sheriff's Ofc., 381 S.C. 357, 673 S.E.2d 423 (2009); Op. S.C. Atty. Gen., 1997 WL 8111890 (November 4, 1997) (explaining that despite previous opinions to the contrary, Section 47-7-110’s domestic animal language included dogs).

B. Delegation of Authority to Counties

The General Assembly has delegated general authority to its counties to enact ordinances “in relation to health and order in counties or respecting any subject as appears to them necessary and proper for the security, general welfare, and convenience of counties or for preserving health, peace, order, and good government in them.” S.C. Code Ann. § 4-9-25 (2006). Moreover, Section 47-3-20 of the Code specifically authorizes governing bodies of each county or municipality in this State to “enact ordinances and promulgate regulations for the care and control of dogs, cats, and other animals.” S.C. Code Ann. § 47-3-20 (West Supp. 2013). Similarly, Section 47-3-70 of the Code explains “[nJothing in this article may be construed to limit the power of any . . . county to prohibit animals from running at large.” S.C. Code Ann. § 47-3-70 (West Supp. 2013).

C. Lexington County Law

Pursuant to the statutory delegation of powers mentioned in the preceding paragraph, Lexington County has enacted ordinances regarding the care and control of dogs, cats, and other

' The phrase “leash or other similar restraining device” is not expressly defined in Section 47-3-10, however subsection (5) of Section 47-3-10 does define the term “under restraint” as “on the premises of its owner or keeper or if accompanied by its owner or keeper by means of a leash or other similar restraining device.” S.C. Code Ann. § 47-3-10(5) (West Supp. 2013).

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animals. For instance, Section 10-34(a) of the Lexington County Municipal Code, generally explains that the owner or custodian of a “pet” must “keep his pet under restraint at all times.” Lex. Mun. Code § 10-34(a) (2003). Additionally, subsection (c) of the ordinance adds that pets on school grounds, in a shopping area or “similar public place” must be on a “leash at all times.” Lex. Mun. Code § 10-34(c) (2003). Continuing, subsection (h) of the ordinance empowers animal control officers to pursue “an animal at large” onto private property. Lex. Mun. Code § 10-34(h) (2003).

Under the definitions portion of the ordinance, the term “pet” is defined as a dog or cat; the phrase “at large” means “any pet that is not under restraint;” and the word “restraint” means either: (1) controlled by a leash when outside the property limits of its owner/custodian; (2) under the control and obedient to the owner/custodian’s commands within the property limits of the owner/custodian; or (3) confined in a secure enclosure. Lex. Mun. Code § 10-31 (2007). Notably, the phrase “at large” appears only once outside of the definitions section of the ordinance, which as mentioned above, is in subsection (h) of section 10-34.

Il. Analysis

With this understanding in mind, we now return to your question, whether the ordinance’s definition of “at large” and “under restraint” are superseded by the state statutes’ definitions of such phrases, where, as here, the Legislature delegated its’ authority to enact such ordinances to local governments under Section 47-3-20 of the Code and further noted, pursuant to Section 47-3-70, that a county’s authority to regulate animals running at large should not be limited by Title 47, Chapter Three, Article I. In light of these authorities, we believe the definitions utilized by the county ordinance are not superseded by state law since the local ordinance, as opposed to being preempted or in conflict with South Carolina law, instead simply supplements state law requirements regarding the restraint of “pets” which, for purposes of the ordinance, means cats and dogs.

“A municipal ordinance is a legislative enactment and is presumed to be constitutional.” Sunset _Cay, LLC v. City of Folly Beach, 357 S.C. 414, 425, 593 S.E.2d 462, 467 (2004). “Determining whether a local ordinance is valid is a two-step process.” Bugsy’s, Inc. v. City of Myrtle Beach, 340 S.C. 87, 93, 530 S.E.2d 890, 893 (2000). The first step is to determine whether the local governmental body at issue had the power to adopt the ordinance. Id. As stated most recently in Sandlands C&D, LLC v. Horry County, 394 S.C. 451, 716 S.E.2d 280 (2011), our Supreme Court now evaluates this question on two fronts: (1) whether local government possesses the authority to enact the ordinance; and (2) whether state law preempts the area of legislation. 394 S.C. at 460, 716 S.E.2d at 284. “If no such power existed, the ordinance is invalid and the inquiry ends.” Bugsy’s Inc. v. City of Myrtle Beach, 340 S.C. at 93, 530 S.E.2d at 893. If, on the other hand, local government had the power to enact the ordinance,

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the second step of the analysis is to determine whether the ordinance is consistent with the Constitution and general law of the State. Id.

A. Power to Enact the Ordinance and Preemption

As detailed more extensively in Section II(A)(1), counties in South Carolina possess general police power to regulate “any subject” the county believes is “necessary and proper” under Section 4-9-25 of the Code, and, pursuant to Section 47-3-20 of the Code, are further authorized to regulate the care and control of dogs, cats and other animals. Furthermore, as explained in Section II(A)(2)(a)-(c) below, the ordinance at issue is neither expressly, impliedly or otherwise preempted by state law, meaning, for purposes of assessing the validity of a local ordinance under step one of the legal analysis set forth in Sandlands, the local government had the power to enact the ordinance which is now brought into question.

1. Lexington County’s Authority to Enact the Ordinance

We believe the local governing body here—Lexington County—had the authority to adopt the ordinance at issue because the Legislature clearly delegated its authority to local governing bodies to regulate this area of the law pursuant to Sections 4-9-25 and 47-3-20 of the Code. See S.C. Code Ann. § 4-9-25 (delegating authority to counties to enact ordinances and regulations on any subject that is necessary and proper concerning health and order, general welfare, convenience of counties, peace, order, and good government); S.C. Code Ann. § 47-3- 20 (delegating authority to local government to promulgate ordinances and regulations concerning the care and control of dogs, cats and other animals).

As mentioned above, counties generally possess authority to regulate subjects which they believe are “necessary and proper,” including the security, general welfare, health, preservation of peace and order and convenience of the county under Section 4-9-25 of the Code, so long as such regulations are “not inconsistent with the Constitution and general laws of this State.” See S.C. Code Ann. § 4-9-25 (“All counties of the State, in addition to the powers conferred to their specific form of government, have authority to enact regulations, resolutions, and ordinances, not inconsistent with the Constitution and general law of this State, including the exercise of these powers in relation to health and order in counties or respecting any subject as appears to them necessary and proper for the security, general welfare, and convenience of counties or for preserving health, peace, order, and good government in them.”). These powers “must be liberally construed.” §.C. Code Ann. § 4-9-25. Moreover, Section 47-3-20 of the Code expressly entrusts local governing bodies with authority to “enact ordinances and promulgate regulations for the care and control of dogs, cats, and other animals.” S.C. Code Ann. § 47-3-20. In light of this obvious delegation of authority, it is clear the Legislature intended local

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government to regulate this area of the law, and thus there can be no question that Lexington County possessed the authority to adopt the ordinance at issue.

2. Preemption

Understanding local governing bodies across the state possess the authority to enact ordinances concerning the care and control of dogs, cats and other animals, we must now determine whether the particular ordinance at issue is preempted by state law. See Sandlands C&D, LLC v. Horry County, 394 S.C. at 460, 716 S.E.2d at 284 (utilizing a preemption analysis as part of determining whether local government had the power to enact an ordinance under the first prong of the test to determine the validity of a local ordinance). Here, because our review of the relevant state statutes reflect the power to regulate the care and control of dogs, cats and other animals has been expressly delegated to local governments and with respect to the subject matter of animals running at large should not be limited by state law, it necessarily follows that the local ordinance is not preempted, either expressly, impliedly or otherwise.

As mentioned in Sandlands, the Court, when evaluating whether a local ordinance is preempted by state law, looks to “federal preemption concepts” meaning the Court will review whether the ordinance is expressly preempted, impliedly preempted or preempted under an implied conflict analysis. 394 S.C. at 462, 716 S.E.2d at 285. “Express preemption occurs when the General Assembly declares in express terms its intention to preclude local action in a given area,” Id. at 462, 716 S.E.2d at 286; “[i]mplied field preemption occurs when the state statutory scheme so thoroughly and pervasively covers the subject so as to occupy the field or when the subject mandates statewide uniformity,” Id. at 465, 716 S.E.2d at 287; and “[i]mplied conflict preemption occurs when the ordinance hinders the accomplishment of the statute’s purpose or when the ordinance conflicts with the statute such that compliance with both is impossible.” Id. at 467, 716 S.E.2d at 288.

a. Express Preemption

Here, we believe it is clear that Lexington County is not expressly preempted from legislating in the area of care, custody and control of dogs, cats and other animals. As detailed above in Section II(A)(1), this is perhaps best evidenced by the Legislature’s delegation of authority both generally in Section 4-9-25, and specifically in Section 47-3-20. This is further confirmed by the text of Section 47-3-70 which explains that Title 47, Chapter 3, Article I cannot be construed in a manner limiting a county’s power to “prohibit animals from running at large.” S.C. Code Ann. § 47-3-70. In light of these provisions, we believe the intent of the Legislature cannot be viewed as precluding “local action in a given area” and therefore, no express preemption exists in the present case.

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b. Implied Field Preemption

Moreover, we believe it is equally clear that Lexington County is not impliedly preempted from enacting an ordinance in the field of care, custody and control of dogs, cats and other animals. While it is true the Legislature created a statutory scheme to regulate the care and control of dogs, cats and animals, via Chapters One, Three and Seven of Title 47, we believe it is obvious that the regulation of this subject matter was never intended “to occupy the entire field of regulation in this area[.]” See Sandlands C&D, LLC v. Horry County, 394 S.C. at 455, 716 S.E.2d at 287 (“Implied field preemption occurs “when the state statutory scheme so thoroughly and pervasively covers the subject so as to occupy the field or when the subject mandates statewide uniformity.”); see also S.C. Code Ann. § 47-3-70 (“Nothing in this article may be construed to limit the power of any municipality or county to prohibit animals from running at large[.]”). Rather, as mentioned above, the Legislature expressed its intent when it delegated its authority to local government to “enact ordinances and promulgate regulations for the care and control of dogs, cats, and other animals” and further explained that Title 47, Chapter Three, Article I, should not be interpreted in a way to limit such powers, specifically with respect to animals running at large. S.C. Code Ann. § 47-3-20; S.C. Code Ann. § 47-3-70. Thus, Lexington County is not impliedly preempted from regulating the field of animal care and control because the Legislature instead expressly delegated authority to regulate this subject matter and further declared that state law should not be viewed as limiting a county’s authority to specifically regulate the subject matter of animals running at large. See Sandlands C&D, LLC v. Horry County, 394 S.C. at 466, 716 S.E.2d at 287-88 (“Where the General Assembly specifically recognizes a local government’s authority to enact local laws in the same field, the statutory scheme does not evidence legislative intent to occupy the entire field of regulation.”); Denene. Inc. v. City of Charleston, 352 S.C. 208, 213, 574 S.E.2d 196, 199 (2002) (“It would have been unnecessary for the legislature to refer to municipalities’ authority to regulate the hours of operation of retail sales of beer and wine if the General Assembly intended to occupy the entire field.”); Am. Vets Post 100 v. Richland County Council, 280 S.C. 317, 319, 313 S.E.2d 293, 294 (1984) (holding that where the language of a state statute contemplated additional regulation of the game of bingo at the local level the subject matter was not impliedly preempted).

c. Implied Conflict Preemption

Furthermore, we believe Lexington County’s ordinance is not preempted under an implied conflict preemption analysis. Instead, our review of the applicable law shows that the state statutes simply set a baseline as to the prohibited conduct at issue—abandoning an animal or letting an animal run at large—and the local ordinance merely enlarges upon such prohibitions by directing how a pet, specifically dogs and cats, must be restrained. Thus, because “additional regulation that merely supplements state law does not result in a conflict,” it is the opinion of this

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Office that Lexington County’s ordinance does not present a case of implied conflict preemption. Denene v. City of Charleston, 352 S.C. at 214, 574 S.E.2d at 199.

“Tn order for there to be a conflict between a state statute and a municipal ordinance ‘both must contain either express or implied conditions which are inconsistent or irreconcilable with each other.’” Sandlands C&D, LLC v. Horry County, 394 S.C. at 467-68, 716 S.E.2d at 288 (quoting Town of Hilton Head v. Fine Liquors, Ltd., 302 S.C. 550, 553, 397 S.E.2d 662, 664 (1990)). Indeed, “[mJere differences in detail do not render them conflicting.” Sandlands C&D. LLC v. Horry County, 394 S.C. at 467-68, 716 S.E.2d at 288. Likewise, if either provision “is silent where the other speaks, there can be no conflict between them” and both laws must stand. Id. Moreover, additional regulations which merely supplement provisions of state law do not result in the subject matter being preempted under an implied conflict analysis. Id. (citing Denene v. City of Charleston, 352 S.C. at 214, 574 S.E.2d at 199).

As mentioned above in Section I(A), South Carolina state law regarding animals at large—the subject matter also generally regulated by the Lexington County ordinance—prohibits such animals’ owners or keepers from, in the case of Section 47-3-50(A)(1), permitting dogs to run at large; and, in the case of Section § 47-7-110, permitting a “domestic animal” to run at large. Moreover, as discussed above, our Supreme Court has previously acknowledged Section 47-7-110’s “domestic animal” phrase includes pets such as dogs. See Hossenlopp v. Cannon, 285 S.C. at 370, 329 S.E.2d at 440 (applying Section 47-7-110’s domestic animal language to a dog bite case) unrelated statute superseded in Harris v. Anderson Cty. Sheriff's Ofc., 381 S.C. 357, 673 S.E.2d 423 (2009); Op. S.C. Atty. Gen., 1997 WL 8111890 (November 4, 1997) (explaining that despite previous opinions to the contrary, Section 47-7-110’s domestic animal language has been interpreted to include dogs). In other words, South Carolina law, when taken as a whole, prohibits the owner or keeper of an animal from permitting the animal to run at large, which for purposes of both applicable statutes, can be construed as essentially “unrestrained.” Compare S.C. Code Ann. § 47-3-10(4) (stating a dog is deemed to be “running at large” if it is off the premises of the owner or keeper and is not under the physical control of the owner or keeper by means of a leash or other similar restraining device) with Black’s Law Dictionary, co" Ed. 2009) (defining the plain meaning of the phrase “run at large” as “free; unrestrained” or “not under control.”). The intent behind doing so is to prevent animals from roaming unrestrained, while also protecting people from animals that could potentially harm them through attacks or the spread of diseases such as rabies.

In comparison, the Lexington County ordinance, which deals only with “pets,” defined as dogs and cats, requires owners or keepers of “pets” to keep them “under restraint at all times” meaning they cannot run at large. See Lex. Mun. Code § 10-31 (defining “pets” as dogs and cats); Lex. Mun. Code § 10-31 (defining “at large” as “not under restraint”); Lex. Mun. Code § 10-34(a) (“The owner/custodian shall keep his pet under restraint at all times.”). These

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restrictions are of course consistent with South Carolina law. Continuing, the ordinance, in subsections (b)-(e) of Section 10-34, provides further direction regarding different types of restraints and details which restraints must be utilized in certain situations. E.g. Lex. Mun. Code
§ 10-34(b) (providing that invisible fencing be clearly marked); Lex. Mun. Code § 10-34(c) (requiring pets on school grounds be on a leash); Lex. Mun. Code § 10-34(d) (setting forth specific methods of restraint for owners of dangerous pets); Lex. Mun. Code § 10-34(e) (detailing methods of confining female pets in heat). Like South Carolina law, the ordinance places these restrictions on pet owners in order to prevent animals from roaming freely, while also protecting individuals from attacks or contracting diseases like rabies.

Understanding the purposes of the respective statutes and comparing them against the ordinance now at issue, we believe, as stated above, that rather than creating an implied conflict preemption issue, both laws place the same restrictions on owners, keepers and custodians of pets and do so for the same purposes. That is, an owner, keeper or custodian of a pet (or pets) must keep their pets under restraint so as to prevent the animal from roaming freely and potentially harming the public. While it is true that the definitions portion of the statute, when compared to that of the ordinance, defines the phrase “at large” in different terms, it is clear the intent of both regulations is to require an owner, keeper or custodian of a pet to keep such an animal under restraint. Compare S.C. Code Ann. § 47-3-10 (explaining a dog is running “at large” when it is off the property of the owner or keep and is not under restraint) with Lex. Mun. Ord. § 10-31 (stating “at large” means any pet not under restraint). Moreover, while we understand the ordinance gives more detailed requirements as to how and when a pet owner must keep a pet under restraint when compared to state law, we believe the additional requirements are neither inconsistent nor irreconcilable with one another. Instead, the ordinance merely speaks where state law is silent and only supplements provisions of state law rather than creating an implied conflict. See Sandlands C&D, LLC v. Horry County, 394 S.C. at 467-68, 716 S.E.2d at 288 (“Mere differences in detail do not render [a statute and ordinance] conflicting.”); Id. (stating an implied conflict only exists where express or implied conditions of each statute are inconsistent and irreconcilable such that the ordinance hinders the accomplishment of the statute’s purpose or the ordinance renders compliance with the statute impossible); Denene v. City of Charleston, 352 S.C. at 214, 574 S.E.2d at 199 (concluding additional regulations which merely supplement provisions of state law do not result in the subject matter being preempted under an implied conflict analysis). Accordingly, neither the ordinance at issue, nor its terms are preempted under an implied conflict analysis.

B. Conflict with the Constitution and General Law of South Carolina Having determined Lexington County possessed the authority to pass an ordinance

regarding the custody and control of cats, dogs and other animals and having further found the ordinance at issue is not preempted expressly, impliedly or otherwise, we must now address,

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under step two of the Sandlands analysis, whether Lexington County’s ordinance is consistent with the Constitution and general law of the state. See Sandlands C&D, LLC v. Horry County, 394 S.C. at 460, 716 S.E.2d at 284 (“Where a court finds the county did ‘ha[ve] the power to enact the ordinance,’ then it must “ascertain [ ] whether the ordinance is inconsistent with the Constitution or general law of this state.”). We believe that it is.

An ordinance must not conflict with the Constitution or general law of the state on a matter of statewide concern or application. 56 Am.Jur.2d, Municipal Corporations §§ 361, 374; McQuillin, Mun. Corp., (3rd Ed.) Vol. 6, § 24.54. This is so because an ordinance repugnant either to the Constitution or general laws is void. Law v. Spartanburg County Board v. City of Spartanburg, 148 S.C. 229, 234, 146 S.E. 12, 13 (1928); Central Realty Corp. v. Allison, 218 S.C. 435, 446-47, 63 S.E.2d 153, 158 (1951). Similar to implied conflict preemption, the question of whether a conflict exists is dependent upon the “whole field of prohibitory legislation with respect to the subject,” and whether the ordinance contains “express or implied conditions which are inconsistent and irreconcilable” with applicable state statutes. McAbee v. Southern Rwy. Co., 166 S.C. 166, 169, 164 S.E. 444, 445 (1932); City of Charleston v. Jenkins, 243 S.C. 205, 210, 133 S.E.2d 242, 244 (1963).

In the present case, there is nothing to suggest the ordinance at issue is in conflict with the South Carolina Constitution. To the contrary, “[o]ur constitution mandates ‘home rule’ for local governments.” Quality Towing, Inc. v. City of Myrtle Beach, 340 S.C. 29, 37, 530 S.E.2d 369, 373 (2000). This includes counties. E.g. Riverwoods, LLC v. Charleston County, 349 S.C. 378, 385-86, 563 S.E.2d 651, 655 (2002) (citing Article VIII’s “home rule” language in a case challenging a county ordinance). “Implicit in Article VIII is the realization that different local governments have different problems that require different solutions.” Quality Towing, 340 S.C. at 37, 530 S.E.2d at 373. Here, we believe the Legislature’s delegation of authority, generally in Section 4-9-25 and specifically in Sections 47-3-20 and 47-3-70, reflect a recognition that different localities may deal with regulating the care and control of animals, particularly animals running at large, in different ways. Because such a delegation of power is consistent with “home tule” we believe the ordinance at issue here, rather than being in conflict with the Constitution, is instead consistent with Article VIII’s mandate that local governments deal with local issues. Quality Towing, 340 S.C. at 37, 530 S.E.2d at 373.

Furthermore, as discussed in Section II(A) above, it is clear Lexington County’s ordinance does not conflict with the general law of this state. Indeed, as has been thoroughly noted in Section II(A)(1), the Legislature delegated authority to counties to address the care and control of dogs, cats and other animals, particularly those running at large, and a review of the applicable state law on the topic of animals running at large, rather than being inconsistent and irreconcilable with the ordinance, instead serves as supplemental regulation regarding their restraint. In light of this, it is the opinion of this Office that Lexington County’s ordinance

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regarding animals, specifically “pets” at large, does not conflict with South Carolina law on this topic but instead, consistent with established authority on this matter, merely places additional requirements on Lexington County pet owners, keepers and custodians as far as what constitutes a “restraint” for purposes of the ordinance. Therefore, we find the ordinance at issue is not in conflict with the general law.

Conclusion

In conclusion, we believe the definition of “at large” and “under restraint” utilized by Lexington County in its pets at large ordinance is not superseded by state law definitions of such phrases, where, as here, the Legislature delegated its’ authority to enact such ordinances to counties under Section 47-3-20 of the Code. Indeed, the Legislature expressly declared state law on this matter should not limit a county’s authority to regulate the subject of animals at large in Section 47-3-70. Furthermore, while it is true both sets of regulations have slightly different definitions of such phrases, we believe that both state law and the county ordinance regulate the same conduct in the same way by requiring animals such as cats and dogs be under restraint at all times and are therefore not in conflict. Moreover, while the Lexington County ordinance places additional restrictions on Lexington County pet owners, keepers and custodians, we believe doing so does not conflict with South Carolina law, but instead simply places additional restrictions as to how certain pets must be restrained in certain situations. Thus, because Lexington County possesses the authority to pass additional regulation on this subject matter; the subject matter is not preempted by state law; and is not in conflict with the Constitution or general laws of the State, we believe Lexington County ordinance’s definition section, which can be read as placing additional restrictions on the restraint of cats and dogs, is not superseded by slightly different state law definitions.

Sincerely,

GEAR

Brendan McDonald
Assistant Attorney General

REVIEWED AND APPROVED BY:

MiG
URbtert D¥Cook

Solicitor General