Can a South Carolina city make its nuisance ordinance enforceable only when three 'responsible citizens' report a violation to the municipal judge?

Official title

Opinion addressing the enforcement and validity of a municipal ordinance regulating nuisances.

Requester

Requested by The Honorable Leon D. "Doug" Gilliam, Member, South Carolina House Representatives.

Plain-English summary

A state representative asked the Attorney General's office about the City of Clinton's nuisance ordinance (Section 50-80). That ordinance lets the municipal judge act against a nuisance only after "three or more responsible citizens" report it, and then has the judge bring the offending parties in for trial. The representative asked whether the city could refuse to enforce the ordinance until three citizens report a violation, whether it could limit reporting to "responsible citizens" (and who decides who qualifies), and whether requiring a petition to the municipal judge forces that judge past the authority state law gives.

The office gave one clear answer and then a list of constitutional concerns. On enforcement: yes, a city has discretion whether to enforce its own ordinances, and South Carolina law (Section 15-78-60) shields a government from liability for failing to enforce a law, valid or invalid (Adkins v. Varn).

On validity, the office started from the rule that ordinances are presumed valid and that a city has broad police power to regulate nuisances (Section 5-7-30, liberally construed). But it raised several red flags about this particular ordinance:

• The "three responsible citizens" trigger may collide with the right to petition the government (S.C. Const. art. I, § 2). Reporting a violation of law is core protected speech (Edwards v. Habib), and the undefined term "responsible citizen" could be applied in a way that restricts who may petition.
• The ordinance may be unconstitutionally vague. "Improperly conduct themselves" so as to become a nuisance may not give fair notice or proper standards, raising due-process concerns (S.C. Dep't of Soc. Servs. v. Michelle G.).
• It may violate the uniformity requirement for criminal law (art. VIII, § 14). State nuisance law (Section 15-43-10) provides for an injunction, while this ordinance imposes a criminal penalty (a fine up to $500 or 30 days under Section 1-14), which the office's 2021 opinion treated as making illegal what is legal under state law.
• Having the municipal judge initiate the case may violate separation of powers. State law gives municipal judges authority to try cases but not to bring criminal charges (except contempt), and prosecuting decisions belong to the executive branch (State v. Thrift).

Even with all those concerns, the office stressed that only a court, not the Attorney General, can declare an ordinance invalid, and that unconstitutionality must be shown beyond a reasonable doubt (Peoples Program for Endangered Species v. Sexton). So the ordinance remains enforceable unless and until a court strikes it down. The office also noted Clinton's separate nuisance ordinances (Sections 50-181 and following) appear to avoid many of these problems.

What this means for you

Cities and municipal officials: Under this opinion, a city has discretion whether to enforce its ordinances and is not liable for declining to. But the office identified multiple ways this nuisance ordinance might be challenged: the "responsible citizens" reporting trigger (right to petition), vague "nuisance" language (due process), a criminal penalty where state law uses an injunction (art. VIII, § 14 uniformity), and a judge-initiated prosecution (separation of powers).

Municipal court judges: The opinion's view is that a municipal judge's authority under Section 14-25-45 is to try cases, not to initiate criminal charges (except contempt), so an ordinance that has the judge start the case raises a separation-of-powers problem.

Residents and would-be complainants: The opinion treats reporting violations of law as protected petitioning activity, and questions an ordinance that limits who may report to undefined "responsible citizens." It does not, however, resolve any of these questions; that is for a court.

Common questions

Does a South Carolina city have to enforce its own nuisance ordinance?
No. The opinion concludes enforcement is within the city's discretion, and Section 15-78-60 protects the city from liability for choosing not to enforce a law.

Is requiring "three responsible citizens" to report a problem?
The office flagged it as a concern. It reasoned that reporting law violations is protected petitioning activity (art. I, § 2; Edwards v. Habib) and that the undefined term "responsible citizen" could be applied to restrict the right to petition. It did not declare the provision invalid.

Why might a criminal penalty be an issue for a nuisance ordinance?
Because state nuisance law (Section 15-43-10) provides for an injunction, while the ordinance imposes a criminal fine or jail term. Following its 2021 opinion, the office said a court could find the ordinance makes illegal an act that is treated differently under state law, raising an art. VIII, § 14 uniformity problem.

Can the municipal judge start a nuisance case on a citizen petition?
The opinion doubts it. It reads Section 14-25-45 to let municipal judges try cases but not initiate criminal charges (other than contempt), and notes that the power to decide when and how to prosecute rests with the executive branch, so a judge-initiated case may violate separation of powers.

So is the ordinance void?
Not according to this opinion. The office stressed it cannot declare an ordinance invalid; only a court can, and only on proof beyond a reasonable doubt. The ordinance stays enforceable unless and until a court rules otherwise.

Background and statutory framework

A South Carolina municipality has broad authority under Section 5-7-30 to enact ordinances for the security, general welfare, health, peace, order, and good government of the municipality, and that authority is to be liberally construed (Section 5-7-10; S.C. Const. art. VIII, § 17). Courts apply a two-step test to a local ordinance: whether the locality had power to enact it, and whether it conflicts with the Constitution or general law (South Carolina State Ports Auth. v. Jasper County; Foothills Brewing Concern, Inc. v. City of Greenville), all against a presumption of validity (U.S. Fidelity & Guar. Co. v. City of Newberry).

The office concluded Clinton likely had power to regulate nuisances under its police power, then measured the ordinance against several constitutional provisions: the right to petition (art. I, § 2), due-process vagueness (art. I, § 3), and the uniformity of criminal law (art. VIII, § 14), comparing the ordinance's criminal penalty to the injunction remedy in the state nuisance statute (Section 15-43-10). On the role of the municipal judge, it relied on Section 14-25-45 and separation-of-powers authority (art. I, § 8; State v. Thrift). Throughout, it applied the rule that an ordinance is presumed constitutional and that only a court may declare it invalid (Peoples Program for Endangered Species v. Sexton).

Citations

Statutes and constitutional provisions: S.C. Code Ann. § 15-78-60; S.C. Code Ann. § 5-7-30; S.C. Code Ann. § 5-7-10; section 15-43-10; Section 14-25-45; Section 1-14 (City of Clinton ordinance); S.C. Const. art. I, §§ 2, 3, 8; S.C. Const. art. VIII, §§ 14, 17.

Cases: Adkins v. Varn, 312 S.C. 188, 439 S.E.2d 822 (1993); U.S. Fidelity & Guar. Co. v. City of Newberry, 257 S.C. 433, 186 S.E.2d 239 (1972); Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008); South Carolina State Ports Auth. v. Jasper County, 368 S.C. 388, 629 S.E.2d 624 (2006); Edwards v. Habib, 397 F.2d 687 (D.C. Cir. 1968); S.C. Dep't of Soc. Servs. v. Michelle G., 407 S.C. 499, 757 S.E.2d 388 (2014); State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994); Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 476 S.E.2d 477 (1996).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-the-enforcement-and-validity-of-a-municipal-ordinance-regulating-nuisances/
• Original PDF: https://www.scag.gov/media/kkmih5i3/03394618.pdf

Original opinion text

Alan Wilson
attorney General

September 1 9, 2023

The Honorable Leon D. “Doug” Gilliam
Member

South Carolina House of Representatives
3347 Buffalo-W. Springs Highway
Buffalo, South Carolina 29321
Dear Representative Gilliam:

We received your letter requesting an expedited opinion of this Office concerning the enforcement
of noise and nuisance ordinances by the City of Clinton (the “City”). You included section 50-80
from the City of Clinton Code of Ordinances with your letter, which you provide as follows:
Sec. 50-80. - Creating a nuisance.
Whenever any business concern or the inmates, occupants or owners of any
house or premises in the city shall so improperly conduct themselves, their
business or their premises as to become a nuisance to the adjacent
neighbourhood, or detrimental to the interests of the same and shall be
reported to the municipal judge by three or more responsible citizens of the
immediate neighbourhood, then it shall be lawful for the municipal judge to
cause the offending parties to be brought before him for trial, and upon
conviction, the offending parties shall each be subject to punishment as
provided in section 1-14 (Emphasis Supplied).
(Code 1977, § 17-102; Code 1995, § 50-137)
Specifically, you ask the following questions:

First, can the City of Clinton, under current law in our state, refuse to enforce

its ordinance until three responsible citizens report an ordinance violation?
Second, can the City of Clinton limit such reporting to responsible citizens
If they can, in your opinion, then who determines what constitutes a

only?

“responsible citizen”?

ki-haiF.RTC. Dennis Building

u

Post G ;t ke Bi >.\ i 1

9

COLIMEJA. SC2921I-I549

• TELE?l!uNE ;M3-7:N-3970

•

.’.'.CSIMiLE i.t;?.-253-62S)

The Honorable Leon D. “Doug” Gilliam
Page 2
September 19, 2023

Third, under existing state law, can the City of Clinton require a petition be
submitted to their municipal court judge? Does doing so require a municipal
court judge to exceed the authority they are granted under state law?
Law/Analysis

First, you inquire whether the City of Clinton (the “City”) may choose not to enforce the ordinance
until three responsible citizens report an ordinance violation. We believe it is within the City’s

discretion to decide whether to enforce its own ordinances.

Pursuant to South Carolina law,

governmental entities are “not liable for a loss resulting from ... (4) adoption, enforcement, or
compliance with any law or failure to adopt or enforce any law, whether valid or invalid, including,
but not limited to, any charter, provision, ordinance, resolution, rule, regulation, or written policies

. . . .” S.C. Code Ann. § 15-78-60 (emphasis added). As stated by our Supreme Court in Adkins
v. Vam. 312 S.C. 188, 192, 439 S.E.2d 822, 824 (1993), “[t]he statute clearly exempts from
liability any loss resulting from the failure to enforce an ordinance . . . .” As such, the decision
whether to enforce a particular ordinance is within the province of the City.
Next, you inquire as to whether the City can limit reporting of violations to “responsible citizens”
and who determines what constitutes a “responsible citizen”? To answer these questions, we must
consider the validity of the ordinance. As we stated in 2009,
we must begin with the presumption that ordinances are presumed valid and
enforceable and will not be struck down by a court unless they are “palpably
arbitrary, capricious or unreasonable.” U.S. Fidelity & Guar. Co. v. City of
Newberry, 257 S.C. 433, 438-39, 186 S.E.2d 239, 241 (1972) (citations

omitted). Our courts employ a two-step process to determine the validity of a
local ordinance. Foothills Brewing Concern, Inc, v. City of Greenville, 377 S.C.
355, 361, 660 S.E.2d 264, 267 (2008).
The first step is to ascertain whether the county had the power to enact

the ordinance. If the state has preempted a particular area of legislation,
then the ordinance is invalid. If no such power existed, the ordinance is
invalid and the inquiry ends. However, if the county had the power to
enact the ordinance, then the Court ascertains whether the ordinance is
inconsistent with the Constitution or general law of this state.
South Carolina State Ports Auth. v. Jasper County, 368 S.C. 388, 395, 629
S.E.2d 624, 627 (2006).
Op. Att’y Gen., 2009 WL 1968616 (S.C.A.G. June 12, 2009).

The Honorable Leon D. “Doug” Gilliam
Page 3

September 1 9, 2023

As such, we must begin with the presumption that the City’s ordinance is valid and enforceable.
Section 5-7-30 of the South Carolina Code (Supp. 2022) provides the following authority to
municipalities:
Each municipality of the State, in addition to the powers conferred to its specific
form of government, may enact regulations, resolutions, and ordinances, not

inconsistent with the Constitution and general law of this State, including the
exercise of powers in relation to roads, streets, markets, law enforcement,
health, and order in the municipality or respecting 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.

Section 5-7-10 of the South Carolina Code (2004) and section 17 of

article VIII of the South Carolina Constitution (2009) instruct us to liberally construe this authority.

See S.C. Code Ann. § 5-7-10 (“The powers of a municipality shall be liberally construed in favor

of the municipality and the specific mention of particular powers shall not be construed as limiting
in any manner the general powers of such municipalities.”); S.C. Const, art. VIII, § 17 (“The
provisions of this Constitution and all laws concerning local government shall be liberally
construed in their favor. Powers, duties, and responsibilities granted local government subdivisions

by this Constitution and by law shall include those fairly implied and not prohibited by this
Constitution.”).
We believe a court likely would find enacting an ordinance to prohibit nuisances is “necessary and

proper for the security, general welfare, and convenience of the municipality or for preserving
health, peace, order, and good government . . . .” This determination is consistent with prior
opinions of this Office finding local governments may regulate nuisances. Ops. Att’y Gen„ 2021
WL 1832300 (S.C.A.G. Mar. 1, 2021) (stating “we believe Richland County has the power to
adopt an ordinance regulating nuisances.”); 2018 WL 1324038 (S.C.A.G. Mar. 9, 2018) (“Cities
and counties in South Carolina are . . . empowered to adopt public nuisance ordinances. This
authority falls generally within the police power of these political subdivisions.”); 2008 WL

2614993 (S.C.A.G. June 24, 2008) (stating “litter control and regulation of nuisances falls within
a county’s authority to enact ordinances affecting health and general welfare.”). Accordingly, we
believe the City likely had authority to enact an ordinance to prohibit nuisances.
But we must also consider whether the ordinance runs afoul of state law. In your letter, you
expressed concern for whether requiring three or more “responsible citizens” to report a nuisance
violates a provision in the South Carolina Constitution prohibiting any law abridging “the right of
the people peaceably to assemble and to petition the government or any department thereof for a

redress of grievances.” S.C. Const, art. I, § 2 (2009). We are not aware of any South Carolina case
law interpreting this provision regarding reporting a violation of the law. However, at least one

federal court determined reporting violations of the law “is at the core of protected First
Amendment speech” under the United States Constitution. Edwards v. Habib, 397 F.2d 687, 690

The Honorable Leon D. “Doug” Gilliam
Page 4

September 19, 2023

(D.C. Cir. 1968). Thus, we are concerned the ordinance is only enforced upon the report of
“responsible citizens.” The ordinance does not specify who is a “responsible citizen,” so
potentially this term could be interpreted in a way that violates the South Carolina Constitution by
restricting the right of people to petition the government.
We also believe the ordinance could be held invalid by a court on other grounds. The ordinance
is violated when a person “improperly conductfs] themselves ... to become a nuisance to the
adjacent neighborhood, or detrimental to the interests of the same . . . .” We are concerned a court
could find this ordinance is unconstitutionally vague as to not satisfy due process under section 3
of article I of the South Carolina Constitution. As explained by our Supreme Court:
“The concept of vagueness or indefiniteness rests on the constitutional principle

that procedural due process requires fair notice and proper standards for
adjudication.” In re Anonymous Member of S.C. Bar, 392 S.C. 328, 335, 709
S.E.2d 633, 637 (201 1) (citation omitted); City of Beaufort v. Baker, 315 S.C.

146, 152, 432 S.E.2d 470, 473 (1993) (citation omitted). Consequently, a statute
may be unconstitutionally vague where “(1) it does not provide fair notice of
the conduct proscribed,” or “(2) it confers on the trier of fact unstructured and
unlimited discretion to determine whether an offense has been committedf.]” In
re Gentry, 142 Mich.App. 701, 369 N.W.2d 889, 893 (1985).
S.C. Dep’t of Soc. Servs. v. Michelle G., 407 S.C. 499, 505, 757 S.E.2d 388, 392 (2014). Improper
conduct, such that it becomes a nuisance, could include a variety of behavior leaving the City’s
residents to guess as to what it means and what behaviors violate the ordinance. Therefore, we
believe a court could find the ordinance does not provide notice as to what conduct triggers a
violation and leaves unlimited discretion to the trier of fact to determine whether an offense has
been committed.
Moreover, we also believe the ordinance may violate section 14 of article VIII of the South
Carolina Constitution. In an opinion issued by this Office in 2021, we considered whether a county
ordinance regulating nuisances violated this provision, which requires uniformity regarding the
state’s criminal laws. Op. Att’v Gen., 2021 WL 1832300 (S.C.A.G. Mar. 1, 2021). We cited
section 15-43-10 of the South Carolina Code pertaining to the use of buildings and places in such
a way as to create a nuisance. Id.
This provision states:

(A) A person who erects, establishes, continues, maintains, uses, owns,

occupies, leases, or releases any building or other place used for the
purposes of lewdness, assignation, prostitution, repeated acts of
unlawful possession or sale of controlled substances, or continuous
breach of the peace in this State is guilty of a nuisance; and the building,
place, or the ground itself in or upon which the lewdness, assignation,

The Honorable Leon D. “Doug” Gilliam
Page 5

September 19, 2023

prostitution, repeated acts of unlawful possession or sale of controlled
substances, or continuous breach of the peace is conducted, permitted,
carried on, continued, or exists and the furniture, fixtures, musical
instruments, and movable property used in conducting or maintaining

the nuisance also are declared a nuisance and shall be enjoined and

abated as provided in this chapter.
(B) As used in this section “continuous breach of the peace” means a
pattern of repeated acts or conduct which either (1) directly disturbs the
public peace or (2) disturbs the public peace by inciting or tending to
incite violence.

(C) Nothing in this section supplants, alters, or limits a statutory or
common law right of a person to bring an action in court or the right of
the State to prosecute a person for a violation of a statute or common
law.

Id. The county ordinance prohibited similar activities as section 15-43-10, but we noted someone
violating this provision is subject to an injunction, whereas a violation of the county ordinance
results in a criminal misdemeanor charge. Id. Thus, we concluded a court could find “the
Ordinance seeks to make illegal acts which are legal under state law and thereby violates section
14 of article VIII.” Id.
According to this ordinance, parties violating it are “subject to punishment as provided in section
1-14.” City of Clinton, SC Ordinances § 50-80. Section 1-14 of the City of Clinton, SC Ordinances
states:

(a) Any person who is convicted for a violation of the ordinances of the city
shall be subject to a maximum fine of not more than $500.00 or
imprisonment for not more than 30 days.
(b) This section shall apply to violations of all ordinances of the city and for
offenses falling within the jurisdiction of the courts of the city that are not
otherwise regulated by the South Carolina Code of Laws.
Subsection(a) of the penalty indicates, just like the ordinance considered in our 2021 opinion, a
violation results in a criminal penalty. Our state’s nuisance law only calls for an injunction.
Therefore, just as we concluded in our 2021 opinion, a court could find “the [o]rdinance seeks to

make illegal acts which are legal under state law and thereby violates section 14 of article VIII.”
Op. Att’y Gen., 2021 WL 1832300 (S.C.A.G. Mar. 1, 2021).
Nevertheless, we must keep in mind ordinances are presumed constitutional, and their
unconstitutionally must be proven beyond a reasonable doubt. Peoples Program for Endangered
Species v. Sexton, 323 S.C. 526, 532, 476 S.E.2d 477, 481 (1996). Moreover, only a court, not

The Honorable Leon D. “Doug” Gilliam
Page 6
September 1 9, 2023

this Office, may declare an ordinance invalid. Op. Att’v Gen., 1985 WL 2591 16 (S.C.A.G. Jan.
29, 1985). Therefore, we advise this ordinance will remain enforceable until and unless a court
rules otherwise.
Next, you inquire as to whether under state law the City can require a petition be submitted to a

municipal court judge and whether this would cause the municipal court judge to exceed his or her
authority? Section 14-25-45 of the South Carolina Code (2017) gives municipal court judges the
following statutory authority:
Each municipal court shall have jurisdiction to try all cases arising under the
ordinances of the municipality for which established. The court shall also have
all such powers, duties and jurisdiction in criminal cases made under state law
and conferred upon magistrates. The court shall have the power to punish for
contempt of court by imposition of sentences up to the limits imposed on

municipal courts. The court shall have no jurisdiction in civil matters.
While municipal courts have jurisdiction to try cases, we do not find authority for them to bring
criminal charges other than for contempt. As we stated in a 2002 opinion, “A Municipal Court’s
subject matter jurisdiction over a criminal matter is obtained through the issuance of an arrest
warrant or uniform traffic ticket.” Op. Att’v Gen., 2002 WL 1925748 (S.C.A.G. July 1, 2002)
(citing State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974)). Our Supreme Court goes further
instructing, “except in the case of contempt of court, it is judicial misconduct for a judge to initiate
criminal charges.” In re Newberry Cnty. Magistrate Eng., 367 S.C. 297, 307, 625 S.E.2d 919, 924
(2006).
In a 1997 opinion discussing whether municipal courts can issue advisory opinions, we explained
municipal courts’ authority as follows:

The municipal courts fall within the unified judicial system, Pickens v. Schmitz,
297 S.C. 253, 376 S.E.2d 271 (1989) and within the doctrine that such courts
shall exercise “judicial power” only. Cf. State v. Whittington, 278 S.C. 661,
301 S.E.2d 134 (1983).
Moreover, Art. I, § 8 mandates that each of the three branches of government
be kept separate. Such Section provides that

[i]n the government of this State, the legislative, executive, and judicial
powers of the government shall be forever separate and distinct from
each other, and no person or persons exercising the functions of one of

said departments shall assume or discharge the duties of any other.
Op. Att’v Gen., 1997 WL 783371 (S.C.A.G. Oct. 20, 1997). “Under the separation of powers
doctrine ... the Executive Branch is vested with the power to decide when and how to prosecute

The Honorable Leon D. “Doug” Gilliam
Page 7
September 1 9, 2023

a case.” State v. Thrift, 312 S.C. 282, 291, 440 S.E.2d 341, 346 (1994). Thus, in addition to our

belief that a municipal court judge docs not have authority to bring charges against someone for
violating an ordinance, we also believe allowing a municipal court judge to initiate the prosecution
of someone who violates the City’s nuisance ordinance may violate the separation of powers

doctrine.
Conclusion

As explained above, it is within the City's discretion as to whether it seeks enforcement of a City
ordinance and it cannot be held liable for failing to do so.

However, we have some concerns as

whether the City’s nuisance ordinance, which limits a municipal court’s jurisdiction to hear

violations until it receives reports of a violation from “three or more responsible citizens,” violates
state law including the right to petition the government in section 2 of article I of the South Carolina
Constitution. We are also concerned this ordinance violates due process and may run afoul of
section 14 of article VIII of the South Carolina Constitution. Furthermore, we arc troubled by the

fact the ordinance gives authority to municipal court judges to initiate a case against a defendant,
which is not permitted under state law and may violate the separation of powers doctrine.
Nevertheless, we must presume an ordinance enacted by the City is valid and enforceable unless
and until a court declares otherwise.
Additionally, in our review of the City’s Code of Ordinances we note other ordinances aimed at
preventing nuisances, specifically those contained in sections 50-181 et scq.. These ordinances
provide a separate set of requirements including reporting requirements. While we do not opine
on the validity of these ordinances, we note that many of the infirmities pointed out in our analysis

of section 50-80 do not exist under these ordinances.
Sincerely,

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert

. Cook

Solicitor General

U