Could Elgin enforce its school-zone ban on electronic communication while driving after South Carolina enacted a statewide law?

Official title

Regarding the validity and enforcement of Town Ordinance 224, which “restricts all electronic communication in a. . . school zone.”

Requester

Chief H. Harold Brown, Chief of Police, Elgin Police Department.

Plain-English summary

Elgin asked whether its ordinance restricting use of wireless communication devices while driving in a school zone remained valid after South Carolina enacted a statewide rule. The Attorney General concluded that the statewide law expressly preempted local ordinances on this subject. Elgin’s Ordinance 224 was therefore invalid and could not be enforced with either a town summons or a Uniform Traffic Ticket.

The school-zone limit did not save the ordinance. The opinion said the ordinance still regulated drivers’ use of wireless communication devices on public roads, which the state law had reserved from local regulation. It recognized municipalities’ general home-rule and traffic powers but found an express state restriction applicable here.

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: Could Elgin enforce its school-zone wireless-device ordinance after the state law took effect? A: The AG said no. It concluded that the ordinance was preempted and could not be enforced by either of the two ticketing methods the police chief asked about.

Q: Did the ordinance’s focus on school zones avoid preemption? A: No. The opinion expressly addressed that narrower geographic scope and said it still regulated the subject covered by the statewide preemption provision.

Q: Did the opinion invalidate all local traffic rules?
A: No. It discussed local authority to adopt additional, nonconflicting traffic regulations, then concluded that this particular ordinance fell within an express state preemption rule.

Background and statutory framework

The police chief described Ordinance 224 as restricting electronic communication in school zones and asked whether a town summons or Uniform Traffic Ticket could enforce it. The opinion quoted the state provision as preempting local rules “regarding persons using wireless electronic communication devices while operating motor vehicles on the public streets and highways of this State.” Its conclusion calls Ordinance 224 “invalid and ... unenforceable.” The original PDF is linked below.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-1-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/10/Brown-H.-OS-9796-10-1-2014-00456740xD2C78.pdf

Original opinion text

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Alan Wilson
attorney General

October 1,2014

Chief H. Harold Brown
Chief of Police, Elgin Police Department
P.O. Box 277
Elgin, South Carolina 29045

Dear Chief Brown:
We are in receipt of your June 12. 2014 opinion request regarding the validity and

enforcement of Town Ordinance 224' which you explain "restricts all electronic communication in a . . . school zone." Specifically, you ask whether Town Ordinance 224 is valid in light of the newly-enacted Section 56-5-3890 of the Code which deals with the unlawful use of a wireless

electronic communication device while operating a motor vehicle.2 Continuing, you ask in the event Town Ordinance 224 is valid, whether it should be enforced through a town summons or a

Uniform Traffic Ticket.

Because local legislation regulating the use of wireless electronic

communication devices while driving is now expressly preempted pursuant to the terms of Section 56-5-3890(0), we believe Town Ordinance 224 is now invalid and cannot be enforced by either a town summons or a Uniform Traffic Ticket.

I.

Law/Analvsis

When detennining the validity of a local ordinance, we begin with the principle that "[a]n ordinance is a legislative enactment and is presumed to be constitutional." Southern Bell Tel. &

Tel. Co. v. City of Spartanburg. 285 S.C. 495, 497, 331 S.E.2d 333, 334 (1985). The burden of

' Elgin Town Ordinance 224 criminalizes the "use of a wireless communication device while operating a motor vehicle in a school zone" during the hours of 7AM until 7PM Monday through Friday. Town of Elgin Mun. Code Ord. 224(1) (enacted May 13, 2014). The crime is classified as a misdemeanor and is punishable by a fine of "no more than one hundred dollars or imprisoned not more than 30 days, or both" where a sign conforming to the

requirements of subsection (3)(a-c) is erected in the school zone and on school property. Town of Elgin Mun. Code Ord. 224(2)-(3).

2 Section 56-5-3890 of the Code, tilled "[ujnlawful use of a wireless electronic communication device while operating a motor vehicle" was enacted on June 9"' of this year as part of Act 260 of the 2013-2014 legislative session. 2014 S.C. Acts 120th Legis. Sess. No. 260 (eff. date June 9, 2014). Specifically Act 260. in its legislative title, explains, among other things, that the purpose of Section 56-5-3890 is to "provide that it is unlawful for a person to use a wireless electronic communication device to compose, send, or read a text-based communication

while operating a motor vehicle on the public highways of this Slate." 2014 S.C. Acts I20'1' Legis. Sess. No. 260. To this end, Section 56-5-3890(8) expressly prohibits individuals from using "a wireless electronic communication device to compose, send, or read a text-based communication while operating a motor vehicle on the public streets and highways of this State." S.C. Code Ann. § 56-5-3890(8) (2014). RewbertC. Dennis Building

• Post Office Box 11549 • Columbia, SC 292 1 1-1549

• Telephone 803-734-3970 . Facsimile 803-253-6283

Chief H. Harold Brown
Page 2

October 1, 2014

proving the invalidity of a local ordinance rests with the party attacking the ordinance.

Id.
"Determining whether a local ordinance is valid is a two-step process." Bugsv's. Inc. v. Citv 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. Horrv 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." Buesv's Inc. v. Citv of Mvrtle 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,

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

"Article VIII of the South Carolina Constitution mandates 'home rule' for local governments and requires all laws concerning local government to be liberally construed in their favor." South Carolina State Ports Auth. v. Jasper County. 368 S.C. 388, 402, 629 S.E.2d 624,

631 (2006) (citing S.C. Const. Art. VIII, § 17); see also Oualitv Towing Inc. v. Citv of Mvrtle Beach. 340 S.C. 29, 37, 530 S.E.2d 369, 373 (2000).

The rationale underlying "home rule" is

that "different local governments have different problems that require different solutions." Oualitv Towing. 340 S.C. at 37, 530 S.E.2d at 373. Pursuant to the constitutional mandate of "home rule" the General Assembly has delegated general authority to its municipalities to enact

ordinances in relation to "any subject which appears to it necessary and proper for the security, general welfare, and convenience of the municipality or for preserving health, peace, order, and good government in it[.]"

S.C. Code Ann. § 5-7-30 (2004).

That said, because the rationale

underlying home rule only applies in instances where the State has either expressly or impliedly delegated its legislative authority to local government, municipalities cannot set aside general

law on subjects requiring statewide uniformity.

See S.C. Const. Art. VIII, § l4(5)-(6) (1895)

(explaining local government cannot set aside general law provisions regarding "criminal law and the penalties and sanctions for the transgression thereof' nor can it set aside general law concerning "the . . . administration of any governmental service or function . . . which requires statewide uniformity."). This principle specifically applies with respect to the regulation of highways as Section 56-5-30 of the Code, while prohibiting local legislation conflicting with

state law, expressly permits regulation which is not in conflict with state law and is additional to that which is regulated under Chapter Five of Title 56.

See S.C. Code Ann. § 56-5-30 (2004)
("The provisions of this chapter shall be applicable and uniform throughout this State and in all

political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance, rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein. Local authorities may, however, subject to the limitations prescribed in § 56-

Chief H. Harold Brown
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October 1, 2014

5-930, adopt additional traffic regulations which are not in conflict with the provisions of this chapter") (emphasis added). 1.

Municipal Authority to Enact the Ordinance

When determining whether local government, in this case a municipality, has authority to legislate, we first look to South Carolina constitutional and statutory law, particularly, as noted

above, Article VIII, Section 17's "home rule" provision which, with respect to municipalities, is codified in Section 5-7-30 of the South Carolina Code. See Quality Towing. Inc.. 340 S.C. at 37, 530 S.E.2d at 373 (looking to "home rule" to determine whether a locality had authority to pass an ordinance regarding a local towing issue).

Specifically, as discussed in subsection (A),

municipalities possess authority to regulate ordinances relating to "any subject which appears to it necessary and proper for the security, general welfare, and convenience of the municipality or for preserving health, peace, order, and good government in it[.]" S.C. Code Ann. § 5-7-30(A). Moreover, with respect to the subject matter of regulating traffic on highways. Section 56-5-30 expressly permits localities to pass legislation concerning such matters so long as the legislation is an "additional traffic regulation[]" which "is not in conflict with the provisions of this

chapter." S.C. Code Ann. § 56-5-30; On. S.C. Att'v Gen.. 2013 WL 6337704 (November 18, 2013) ("[T]he Legislature has expressly declared that local governments are only authorized to

enact traffic regulations in addition to those set forth in the [Uniform Traffic Act] to the extent such ordinances do not conflict with the provisions of the [Uniform Traffic Act] unless expressly

authorized.") (emphasis in original). As a result, localities possess authority to enact ordinances concerning the regulation of traffic on highways, but only in certain limited circumstances where state law does not preempt such regulation through state-level legislation. Accordingly we now move to the second front regarding a municipality's power to enact an ordinance—^preemption. 2.

Preemption

When evaluating whether a local ordinance is preempted by state law, our Courts look 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.

Sandlands.

"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.

In this instance, we believe that Town Ordinance 224 is expressly preempted pursuant to

the terms of Section 56-5-3890(G) of the South Carolina Code.

Chief H. Harold Brown
Page 4

October 1, 2014

i.

Express Preemption

Despite the powers discussed in Section 1(A)(1) regarding a municipality's general authority to pass, pursuant to both "home rule" and Section 56-5-30, "additional traffic

regulations which are not in conflict with the provisions of this chapter," it is clear the Legislature, by enacting Section 56-5-3890(0), intended to expressly preempt local regulation concerning the use of wireless electronic communication devices while driving.

subsection

(G)

of Section 56-5-3890

Specifically,

states, "[t]his section preempts local ordinances,

regulations, and resolutions adopted by municipalities, counties and other local governmental entities regarding persons using wireless electronic communication devices while operating motor vehicles on the public streets and highways ofthis State ." S.C. Code Ann. § 56-5-3890(0)

(emphasis added).

Thus, Town Ordinance 224, although only regulating the use of electronic

communication devices while driving in a school zone, still regulates "persons using wireless electronic communication devices while operating motor vehicles on the public streets and

highways of this State," a subject matter expressly preempted from local regulation by the terms of Section 56-5-3890(0).

See Sandlands. 394 S.C. at 462, 716 S.E.2d at 286 ("Express

preemption occurs when the General Assembly declares in express terms its intention to preclude

local action in a given area."). This of course results in Town Ordinance 224 being in conflict with "the provisions of this chapter" namely. Section 56-5-3890(0). See S.C Code Ann. § 56-5 30 (explaining that local government only has the power to pass legislation concerning traffic on the highways where such legislation is not in conflict with state law on the subject matter and is

additional to that which is regulated by state law). Accordingly, we believe there is no power to enforce the provisions of Town Ordinance 224 and therefore, it is the opinion of this Office that

the ordinance is invalid. See Buesv's Inc. v. City of Myrtle Beach. 340 S.C. at 93, 530 S.E.2d at

893 ("If no such power existed, the ordinance is invalid and the inquiry ends."). II.

Conclusion

In conclusion, it is the opinion of this Office that local legislation regulating the use of wireless electronic communication devices while driving is now expressly preempted pursuant to the terms of Section 56-5-3890(0) of the South Carolina Code. As a result, we believe Elgin Town Ordinance 224, an ordinance regulating use of "a wireless electronic communication device while operating a motor vehicle in a school zone" is now invalid and is therefore unenforceable. Sincerely,

Brendan McDonald
Assistant Attorney General

Chief H. Harold Brown
Page 5

October 1,2014

REVIEWED AND APPROVED BY:

robert D. Cook
Solicitor General