Can a South Carolina city hire a private company to write and collect parking tickets?

Official title

Opinion addressing a municipality’s ability to contract with a private entity to enforce municipal parking ordinances.

Requester

The Honorable Larry K. Grooms, Member, South Carolina Senate

Plain-English summary

Senator Larry Grooms told the South Carolina Attorney General that a coastal city had contracted with a private company to enforce its parking ordinance. The company patrolled the city's streets, wrote tickets, collected the fines, and split the money with the city under a contract formula. He asked whether that arrangement is an improper delegation of the city's police powers.

The AG's answer is yes, it is an improper delegation. The opinion explains that a city's police powers come from the Legislature, mainly through § 5-7-30 of the South Carolina Code, and that regulating parking falls within those police powers (the opinion cites Owens v. Owens and § 56-5-710 for the parking-regulation authority). Because parking enforcement is a discretionary exercise of police power rather than a routine ministerial task, it cannot be handed to a private entity unless the constitution or a statute specifically allows it.

The opinion rests on a line of prior AG opinions reaching the same conclusion in different settings: a 1980 opinion that a city could not contract with a private security agency to make arrests, a 2010 opinion that a county could not delegate tree-removal-ordinance enforcement to a homeowners' association, and a 2012 opinion that a homeowners' association's private security could not enforce beach rules on public property. Following its rule that it will not overrule a prior opinion unless it is clearly erroneous or the law has changed, and finding no constitutional or statutory authority for private parking enforcement, the AG concluded a city cannot delegate that function to a private company.

What this means for you

City and town governments

The opinion treats parking enforcement as a police power that the city itself must exercise, not one it can contract out to a private firm that writes tickets and shares in the fines. A municipality considering or already using such an arrangement should read the opinion as the AG's view that the delegation is improper absent specific statutory or constitutional authority, which the AG did not find.

Private parking and security companies

For a company that contracts to patrol streets and issue municipal parking citations, the opinion describes that role as exercising the city's police power, which the AG concludes a private entity cannot lawfully do here. The opinion distinguishes ministerial duties (which can be delegated) from discretionary or quasi-judicial functions like police power (which cannot, absent authority).

Residents who got a privately issued ticket

The opinion does not decide the validity of any particular ticket; it answers the delegation question in the abstract. It tells you the AG's position that a city's parking enforcement cannot be carried out by a private contractor without legislative or constitutional authority.

Common questions

Can a city pay a private company to write parking tickets? In the AG's view, no. Parking enforcement is an exercise of the city's police power, and the opinion concludes a municipality cannot delegate that power to a private entity without constitutional or statutory authority, which the AG did not find.

Why can't the city just contract it out like other services? The opinion distinguishes ministerial duties, which can be delegated, from discretionary functions like exercising police power, which cannot. It relies on prior opinions holding that "governmental entities are precluded from delegating their police powers to individuals or private entities."

What would make private parking enforcement legal?
The opinion ties the bar to the absence of authority: a city could delegate the function only if the constitution or a statute specifically authorized it. The AG found no such authority for parking enforcement.

Is this a new rule?
No. The opinion follows a line of earlier AG opinions from 1980, 2010, and 2012 reaching the same result in different contexts, and notes the office will not overrule a prior opinion unless it is clearly erroneous or the law has changed.

Background and statutory framework

Section 5-7-30 of the South Carolina Code is the general grant of municipal powers, including police powers, from the Legislature. The opinion notes that authority to regulate parking falls within those powers, citing Owens v. Owens, 193 S.C. 260, 8 S.E.2d 339 (1940), and S.C. Code Ann. § 56-5-710 (2018), which gives local authorities power to regulate parking on streets and highways under their jurisdiction "within the reasonable exercise of the police power."

The legal principle is that police power delegated by the State to a municipality must be strictly construed, and a municipality cannot, by contract, part with the law-enforcement authority the State delegated to it. The opinion quotes its 1980 opinion, which relied on Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689, and Sammons v. City of Beaufort, 225 S.C. 490, 83 S.E.2d 153, for that proposition. It then traces the same conclusion through its 2010 and 2012 opinions distinguishing delegable ministerial duties from non-delegable discretionary or quasi-judicial powers. Applying that framework, the AG found parking enforcement to be a discretionary police-power function and concluded it cannot be delegated to a private entity.

Citations

Statutes:

• section 5-7-30 of the South Carolina Code (Supp. 2023) (general municipal powers)
• S.C. Code Ann. § 56-5-710 (2018) (local authority to regulate parking)

Cases:

• Owens v. Owens, 193 S.C. 260, 8 S.E.2d 339, 342 (1940)
• Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689
• Sammons v. City of Beaufort, 225 S.C. 490, 83 S.E.2d 153

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-a-municipality-s-ability-to-contract-with-a-private-entity-to-enforce-municipal-parking-ordinances/
• Original PDF: https://www.scag.gov/media/jbva4les/grooms-final.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

November 15, 2024

The Honorable Larry K. Grooms
Member

South Carolina Senate

P.O. Box 142

Columbia, South Carolina 29202

Dear Senator Grooms:

We received your letter requesting an opinion of this Office concerning enforcement of municipal parking ordinances by private entities. In your letter, you explain:

It has come to my attention that the governing body of a coastal municipality has contracted with a private entity to enforce the municipality’s parking ordinance. The private entity patrols the municipality’s streets looking for violators of the ordinance, writes tickets for the violators, and collects the fines. The municipality and the private entity then split the fines based upon a formula in their contract.

Specifically, you ask: “Is it the opinion of your office that a municipality contracting with a private entity to enforce the municipality’s parking ordinance is a prohibited delegation of the municipality’s police powers”?

Law/Analysis

As mentioned in prior opinions, a municipality’s police powers are conferred to them by the Legislature primarily through section 5-7-30 of the South Carolina Code (Supp. 2023). Moreover, our courts and the Legislature recognize regulating parking falls under this authority. Owens v. Owens, 193 S.C. 260, 8 S.E.2d 339, 342 (1940) (recognizing a municipality’s authority to regulate parking); S.C. Code Ann. § 56-5-710 (2018) (specifying local authorities have the power to regulate parking “with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power... .”). For reasons explained below, because regulating parking involves the exercise of a municipality’s police powers, we do not believe such authority can be delegated to a private entity.

As you mentioned in your letter, we considered whether a municipality’s police powers may be delegated to a private entity in prior opinions issued by this Office. In a 1980 opinion, we considered whether a municipality had the authority to contract with a private security agency

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November 15, 2024

allowing it to make arrests on public streets and public property. Op. Att’y Gen., 1980 WL 121077 (S.C.A.G. Mar. 6, 1980). We determined:

Generally, the State’s police power may be delegated by the legislature to a municipality, but the legislative reach of that authority must be strictly construed. McQuillan, Municipal Corporations, Vol. 6, § 24.39 at 557. Further, a municipality has no greater powers in passing an ordinance relative to the police power than those delegated to it by the legislature. Henderson v. City of Greenwood, 172 S.C. 16, 172 S.E. 689... . It has long been the law in this State that no municipality may by contract part with the authority delegated it by the State to exercise the police power, Sammons v. City of Beaufort, 225 S.C. 490, 83 S.E.2d 153. Here the State has delegated the power of law enforcement to its municipalities and the municipality may not part with that power by contract with a private security agency.

Id.

You also mentioned our 2010 opinion addressing a county’s ability to delegate its authority to enforce a county tree removal! ordinance to a homeowner’s association. Op. Att’y Gen., 2010 WL 3505050 (S.C.A.G, Aug. 4, 2010). We acknowledged the county’s ability to delegate zoning enforcement to code enforcement officers but found no authority allowing the county to further delegate zoning enforcement to a private entity. Id. We discussed powers that can and cannot be delegated, noting that ministerial duties can be delegated, but in the absence of constitutional or statutory authority, discretionary or quasi-judicial powers cannot be delegated. Because exercising police power is a discretionary function, we concluded “governmental entities are precluded from delegating their police powers to individuals or private entities.” Id.

In our research, we also found a 2012 opinion similarly concluding a homeowner’s association’s private security force did not have law enforcement authority to enforce beach rules on public property. Ops. Att’y Gen., 2012 WL 5376055 (S.C.A.G. Oct. 19, 2012). In the opinion, we cited to the 2010 opinion referenced above as well as a 2008 opinion finding a special tax district did not have the ability to contract with a private company to provide law enforcement. Based on these opinions, we again found local governments cannot delegate their police powers to private entities absent constitutional or statutory authority. Id.

“This Office recognizes a long-standing rule that we will not overrule a prior opinion unless it is clearly erroneous or a change occurred in the applicable law.” Op. Att’y Gen., 2009 WL 959641 (S.C.A.G. Mar. 4, 2009). As our prior opinions conclude, local governments are without the ability to delegate police powers without constitutional or statutory authority. Finding no constitutional or statutory authority allowing municipalities to delegate parking enforcement, which we find is an exercise of their police powers, we do not believe municipalities can delegate this authority to a private entity.

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November 15, 2024

Conclusion

Parking enforcement involves the exercise of a municipality’s police powers. Based on prior opinions of this Office, police power may not be delegated to private entities absent legislative or constitutional authority. Finding no such authority, we do not believe a municipality may delegate

parking enforcement to a private entity.

REVIEWED AND APPROVED BY:

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Sincerely,
C poe 4) LX /
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Cydney Milling

Assistant Attorney General

Robert D. Cook
Solicitor General