Could a South Carolina locality set a sex-offender residency buffer greater than the state's 1,000 feet?

Plain-English summary

A representative asked whether South Carolina local governments could set a residency distance for covered sex offenders greater or smaller than the one-thousand-foot buffer in a 2008 state law. The Attorney General's office concluded that the state law did not bar a locality from imposing a greater residency restriction. It reasoned that additional local regulation could coexist with the state restriction where the Legislature had not preempted the field or created an irreconcilable conflict.

The opinion separately emphasized that local penalties could not exceed or be less lenient than the state penalties. Although the request mentioned a shorter distance as well as a longer one, the analysis and conclusion addressed broadening the restricted area; they did not give a distinct answer approving a shorter buffer.

Currency note

This opinion was issued in 2008. 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

Could a locality require a greater separation distance than state law required?

The AG said yes under the 2008 law it analyzed. It treated a larger restricted area as additional regulation rather than a conflict with the state buffer.

Could the locality change penalties for violating the residency rule?

The opinion said no. The act barred local penalties that exceeded or were less lenient than the penalties in the state provision.

Did the opinion approve a shorter local distance?

No distinct conclusion on a shorter distance appears in the analysis. The office's affirmative answer concerned a more restrictive local buffer.

Background and statutory framework

Act No. 333 of 2008 set a residency restriction for offenders convicted of specified crimes near schools, daycare centers, children's recreation facilities, parks, and public playgrounds, with specified exceptions. The opinion quoted its restriction on inconsistent local penalties. It cited Denene, Inc. v. The City of Charleston for the distinction between state field preemption and additional local regulation, and Foothills Brewing Concern, Inc. v. City of Greenville on state-local conflict. The opinion found no conflict from a larger local buffer under the then-current act.

Citations and references

• Act No. 333 of 2008: state residency buffer and penalty provision discussed in the opinion.
• Denene, Inc. v. The City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002): field preemption and additional regulation.
• Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008): state-local conflict analysis.

Official title

Regarding the provisions of Act No. 333 of 2008, the Sex Offender Residency Registration Act. Specifically, questioning the restrictions on local governments implementing a distance requirement regarding the residency

Requester

The Honorable Joan Brady, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-31-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/brady-j-os-8688-10-31-08-sex-offender-residency-registration-act.pdf

Original opinion text

l-IENRY MCMASTER
ATTORNEY GENERAL

October 31, 2008

The Honorable Joan Brady
Member, House of Representatives
151 Berry Tree Lane
Columbia, South Carolina 29223
Dear Representative Brady:
In a letter to this office you requested an opinion regarding the provisions of Act No. 333 of 2008, the Sex Offender Residency Registration Act. You have questioned the restrictions on local governments implementing a distance requirement regarding the residency requirements of sex offenders either more or less than the one thousand feet provided for by the Act. The referenced Act generally makes it illegal for a sex offender convicted of certain specified offenses "to reside within one thousand feet of a school, daycare center, children's recreational facility, park, or public playground." Exceptions are provided for certain situations such as where an offender lived in a prohibited area before the effective date of the Act. Criminal penalties are provided for violations of such provision and it is specifically stated that"( a] local government may not enact an ordinance that contains penalties that exceed or are less lenient than the penalties contained in this section." The restriction on local governments providing penalties inconsistent with Act No. 333 is consistent with the general rule that local governments may not enact ordinances that impose greater or lesser penalties than those established by state law. See: Beachfront Entertainment, Inc. v. Town of Sullivan's Island, 2008 WL 4109723 (2008); City of North Charleston v. Harper, 306 S.C. I 53, 410 S.E.2d 569 (1991 ). However, the restriction on local governments with regard to penalties that exceed or are less lenient that the penalties established by State law does not, in the opinion of this office, prohibit a local jurisdiction from enacting prohibitions greater than the limitations set by state law, i.e., restricting residency by sex offenders greater than one thousand feet. As set forth in Denene, Inc. v. The City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002), "[i]n order to preempt an entire field, an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way." Furthermore, an explained by the Court in Dcnene, "(a]s a general REMBEKf' C, DENNIS BL:JLD!NG .. Posr ()FFJCb Box ! 1549 .. CotL:MB!A. SC 29211-1549 .. TELEPHONE 803-7.14-3970 .. FACSIMILE 80.1-253~6283

The Honorable Joan Brady
Page2
October 31, 2008

rule, 'additional regulation to that of State law does not constitute a conflict therewith." 352 S.C. at 214. Also,
[i]n 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. Mere differences in detail do not render them conflicting. If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand. Ibid. See also: Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008). Act No. 333, while prohibiting certain sex offenders from residing within one thousand feet of named places, does not prohibit additional regulation by a local government broadening the restricted area in which sex offenders may reside. Such action by a local government would be considered additional regulation that is not in conflict with state law. If there are any questions, please advise.

Very truly yours,
Henry McMaster
Attorney General

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Charles H. Richardson
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