Who can enforce South Carolina's waste-tire disposal law, and is the penalty criminal or civil?

Official title

Opinion addressing who may enforce Section 44-96-170(H) pertaining to waste tires and whether this provision imposes a criminal or civil penalty.

Requester

Requested by Sarah Lyles, Executive Director, PalmettoPride.

Plain-English summary

PalmettoPride, the state's anti-litter organization, asked two questions about the waste-tire provision in South Carolina's Solid Waste Policy and Management Act. The provision, section 44-96-170(H), bars maintaining an unpermitted waste-tire collection site and knowingly dumping waste tires improperly, and sets a fine of up to $200 per tire. The questions were: who is allowed to enforce it, and is a violation criminal or civil?

On enforcement, the statute itself says it "may be enforced by a state, county, or municipal law enforcement official, or by the department" (DHEC). The real question was whether county litter control and code enforcement officers count as "law enforcement officials." The office walked through years of its own opinions about code enforcement officers appointed under Section 4-9-145, who are "vested with all the powers and duties conferred by law upon constables," must train at the Criminal Justice Academy, and are certified Class 3 officers. Although a 2000 opinion had said code officers were not "law enforcement officers" for issuing uniform traffic tickets, the office explained that conclusion turned on the need for arrest authority, and the law had since changed to give litter officers limited arrest power. Because enforcing the waste-tire fine does not require arrest authority, the office concluded a court would likely find code enforcement and litter control officers can enforce section 44-96-170(H).

On the civil-or-criminal question, the office applied the test from State v. Cuccia (adopting the U.S. Supreme Court's seven-factor Hudson test). The factors cut both ways, so the office said it was unsure from the factors alone. But under South Carolina State Highway Department v. Southern Railway Company, when a statute imposes a "fine" yet does not make the violation a criminal offense, the word "fine" is used in the broader sense of a penalty that can be collected civilly. Because the Legislature does not call a section 44-96-170 violation a crime, the office concluded a court would likely treat the fine as a civil penalty, while cautioning the answer is not free from doubt and suggesting the requester seek guidance from a court or the Legislature.

What this means for you

Litter control and code enforcement officers: Under this opinion, a court would likely find these officers, appointed and commissioned under Section 4-9-145 with constable powers, are "law enforcement officials" who may enforce the waste-tire provision, section 44-96-170(H). A county may still limit the scope of an officer's authority.

DHEC and local governments: The opinion reads the statute to allow enforcement by DHEC and by state, county, and municipal law enforcement officials alike, not DHEC alone. It treats the waste-tire fine as most likely a civil penalty, but flags that this is uncertain.

Waste-tire haulers, sites, and the public: The opinion describes section 44-96-170(H)'s prohibitions (unpermitted collection sites, improper disposal) and its fine of up to $200 per tire, with each tire a separate violation. Whether enforcement proceeds civilly or criminally is, in the office's view, likely civil but not settled.

Common questions

Can a county code enforcement or litter officer write up a waste-tire violation, or only DHEC?
According to this opinion, a court would likely find code enforcement and litter control officers can enforce section 44-96-170(H), in addition to DHEC and state, county, and municipal law enforcement officials. The statute names all of them.

Is dumping waste tires a crime in South Carolina or just a civil fine?
The office concluded a court would likely treat the section 44-96-170(H) fine as a civil penalty, relying on Southern Railway Company, because the Legislature did not make the violation a criminal offense. It cautioned the answer is not free from doubt.

How big is the penalty?
The provision sets a fine not to exceed two hundred dollars, and the opinion notes each tire improperly disposed of is a separate violation.

Why was the office uncertain about civil versus criminal?
Because the seven-factor test from Hudson, adopted in Cuccia, pointed in different directions (fines are historically punishment and deter conduct, but the conduct is not already a crime and there is no affirmative restraint). The office leaned civil based on the Southern Railway Company rule, not the factors alone.

Background and statutory framework

Section 44-96-170(H), part of the Solid Waste Policy and Management Act (S.C. Code Ann. § 44-96-10 et seq.), prohibits maintaining an unpermitted waste-tire collection site and knowingly disposing of waste tires improperly, and provides that a violator is subject to a fine not exceeding $200, enforceable by a state, county, or municipal law enforcement official or by DHEC. The Act does not define "law enforcement officials," so the office looked to Section 4-9-145, which lets counties appoint code enforcement officers vested with constable powers (and litter control officers with limited arrest authority if certified). A line of AG opinions has treated such officers as law enforcement officers for purposes like subsistence allowances, blue lights, and concealed-weapon exemptions, while a 2000 opinion found them not law enforcement officers for issuing uniform traffic tickets under Section 56-7-10, a conclusion the office said rested on arrest-authority concerns that the later amendments and this fine-only statute do not raise.

For the civil-or-criminal analysis, the office used the framework in State v. Cuccia, 353 S.C. 430, 578 S.E.2d 45 (Ct. App. 2003), and State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998), incorporating the U.S. Supreme Court's seven-factor Hudson test, along with In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001), and Jackson v. State, 331 S.C. 486, 489 S.E.2d 915 (1997). It then applied South Carolina State Highway Department v. Southern Railway Company, 239 S.C. 227, 122 S.E.2d 422 (1961), distinguishing a "fine" as punishment for a crime from a "penalty" collectible civilly. The constable-authority discussion drew on State v. Luster, 178 S.C. 199, 182 S.E. 427 (1935), and State v. Franklin, 80 S.C. 332, 60 S.E. 953 (1908).

Citations

Statutes: section 44-96-170(H) (and section 44-96-170); S.C. Code Ann. § 44-96-10 et seq.; Section 4-9-145; Section 23-6-400(D)(1); section 23-23-10; Section 56-7-10.

Cases: State v. Cuccia, 353 S.C. 430, 578 S.E.2d 45 (Ct. App. 2003); State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998); In re Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001); Jackson v. State, 331 S.C. 486, 489 S.E.2d 915 (1997); South Carolina State Highway Department v. Southern Railway Company, 239 S.C. 227, 122 S.E.2d 422 (1961); State v. Luster, 178 S.C. 199, 182 S.E. 427 (1935); State v. Franklin, 80 S.C. 332, 60 S.E. 953 (1908).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-who-may-enforce-section-44-96-170-h-pertaining-to-waste-tires-and-whether-this-provision-imposes-a-criminal-or-civil-penalty/
• Original PDF: https://www.scag.gov/media/tikn52gm/03386956.pdf

Original opinion text

Alan Wilson
Attorney General

September 8, 2023

Sarah Lyles
Executive Director
PalmettoPride

2700 Middleburg Drive, Suite 216
Columbia, SC 29204
Dear Ms. Lyles:

We received your letter requesting an opinion of this Office concerning a provision in the Solid
Waste Policy Management Act (the “Act”).

S.C. Code Ann. § 44-96-10 et seq. (2018 & Supp.

2022). Specifically, you inquire as to who may enforce section 44-96- 170(H) of the South

Carolina Code (2018) pertaining to waste tires. You ask for “clarification as to whether all litter
control and code enforcement officers are allowed to enforce this law or if it is intended that only
SCDHEC enforcement officers enforce this law.” Additionally, you ask whether “violations of
the Act are considered criminal or civil?”
LAW/ANALYSIS
A. Who may enforce section 44-96-170(H)?

Section 44-96- 170(H) provides as follows:

Eighteen months after this chapter is effective, a person shall not:

(1) maintain a waste tire collection site unless such site is an integral
part of the person’s permitted waste tire treatment facility or that
person has entered into a contract with a permitted waste tire treatment

facility for the disposal of waste tires;
(2) knowingly dispose of waste tires in this State, unless the waste tires
are disposed of at a permitted solid waste disposal facility; or

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Sarah Lyles
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September 8, 2023

(3) knowingly dispose of or discard waste tires on the property of
another in a manner not prescribed by this chapter.

For an interim period to be determined by the department, waste tires may be

disposed of at a solid waste disposal facility, a waste tire recycling or
processing facility, or a waste tire collection center seeking a permit from the
department pursuant to this section. Notwithstanding any other provision of
law, a person violating this subsection shall be subject to a fine not to exceed

two hundred dollars. This provision may be enforced by a state, county, or

municipal

law

enforcement

official,

or by

the

department.

Each

tire

improperly disposed of must constitute a separate violation.

(emphasis added).

As specifically stated, section 44-96- 170(H) may be enforced by “a state, county, or municipal
law enforcement official, or by the department.” While the South Carolina Department of Health

and Environmental Control (“DHEC”) can enforce the statute, the Legislature included others
who may do so as well including local law enforcement officials. The status of litter control and
code enforcement officers as “law enforcement officials” determines whether they may enforce
section 44-96- 170(H). The Act does not define “law enforcement officials” for purposes of this

provision or any other provision under the Act although state, county, and municipal law
enforcement officials are authorized to enforce multiple sections of the Act. See S.C. Code Ann.
§§ 44-96-160 (used oil); 44-96-180 (lead-acid batteries); 44-96-190 (yard trash; compost); 44-

96-200 (white goods). Therefore, we look to the authority given to litter control and code
enforcement officers under South Carolina law to determine if they are law enforcement
officials.

Section 4-9-145 of the South Carolina Code (2021) allows counties to appoint litter control
officers and provides:
(A) Except as provided in subsection (B), the governing body of a county may

appoint and commission as many code enforcement officers as may be
necessary for the proper security, general welfare, and convenience of the

county. These officers are vested with all the powers and duties conferred by
law upon constables in addition to duties imposed upon them by the governing

body of the county. However, no code enforcement officer commissioned
under this section may perform a custodial arrest, except as provided in

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September 8, 2023

subsection (B). These code enforcement officers must exercise their powers
on all private and public property within the county. The governing body of

the county may limit the scope of a code enforcement officer’s authority or
the geographic area for which he is authorized to exercise the authority
granted.

(B)(1) The number of litter control officers vested with custodial arrest
authority who are appointed and commissioned pursuant to subsection (A)

must not exceed the greater of:

(a) the number of officers appointed and commissioned by the
county on July 1, 2001; or

(b) one officer for every twenty-five thousand persons in the
county, based upon the 2000 census. Each county may appoint

and commission at least one officer, without regard to the
population of the county.

(2)(a) A litter control officer appointed and commissioned pursuant to
subsection (A) may exercise the power of arrest with respect to his
primary duties of enforcement of litter control laws and ordinances and
other state and local laws and ordinances as may arise incidental to the
enforcement of his primary duties only if the officer has been certified

as a law enforcement officer pursuant to Article 9, Chapter 6, Title 23.

(b) In the absence of an arrest for a violation of the litter
control laws and ordinances, a litter control officer authorized
to exercise the power of arrest pursuant to subitem (a) may not
stop a person or make an incidental arrest of a person for a
violation of other state and local laws and ordinances.

(3) For purposes of this section, the phrase “litter control officer”
means a code enforcement officer authorized to enforce litter control

laws and ordinances.

Shortly after the enactment of section 4-9-145, this Office noted the Legislature’s intent in
enacting section 4-9-145 was to allow “state and local governmental units and agencies [to]

Sarah Lyles
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September 8, 2023

assist in the litter control effort . . ..”

Op. Att’y Gen., 1990 WL 599348 (S.C.A.G. Dec. 10,

1990). Over the years, we issued several opinions addressing the authority of code enforcement
officers appointed pursuant to section 4-9-145.

In 1991, we issued an opinion concluding

security officers appointed via section 4-9-145 were entitled to a subsistence allowance available

to “commissioned law-enforcement officers.” Op. Att’y Gen., 1991 WL 474752 (S.C.A.G. Apr.

1, 1991). In another 1991 opinion, we determined:

Section 4-9-145 was enacted as a means of providing law enforcement
authority for individuals in salaried county positions such as animal control

and litter control. Because of their law enforcement authority, these officers
are required to attend the State Criminal Justice Academy. See: Section 23-2340 of the Code.

Op. Att’y Gen., 1991 WL 474786 (S.C.A.G. Oct. 16, 1991). In 1993, we addressed whether litter

control officers could use blue lights. We conclude they could based on the following:

Pursuant to Section 4-9-145 county code enforcement officers are granted law
enforcement authority inasmuch as these officers are granted “all the powers

and duties conferred by law upon constables.” See: State v. Luster, 178 S.C.
199, 182 S.E. 427 (1935). See also: Opins, of the Atty.Gen. dated February 9,
1981, July 12, 1976, and July 17, 1975. Presumably, therefore, the vehicles

used by these officers would qualify as vehicles used “primarily for law
enforcement purposes” or as “police vehicles.” Therefore, it appears that such
officers would be authorized to use blue lights on their county vehicles.

Op. Att’y Gen., 1993 WL 439030 (S.C.A.G. Sept. 13, 1993).

In 1 997, we were asked whether a code enforcement officer appointed pursuant to section 4-9145 could be issued and carry a weapon or pistol during the performance of his or her duties. Op.
Att’y

Gen.,

1997

WL 255969

(S.C.A.G.

Apr.

24,

1997).

We

analyzed whether code

enforcement officers are exempt from the concealed weapons law, which specifically exempts
regular, salaried law enforcement officers.

Id. We noted a prior opinion that determined code

enforcement officers are “officers” for purposes of dual office holding. Id. We also noted our
1993 opinion relying on the powers afforded to code enforcement officers to determine their
vehicles were law enforcement vehicles. Id. Citing to the statute defining “law enforcement
officer” for purposes of the Law Enforcement Officers Act, we stated:

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Section 23-6-400(D)(l) defines the term “[l]aw enforcement officer” for
purposes of the Law Enforcement Officers Act. A “law enforcement officer”

is defined as

... an appointed officer or employee hired by and regularly on the
payroll of the State or any of its political subdivisions, who is granted
statutory authority to enforce all or some of the criminal, traffic, and

penal laws of the State and who possesses, with respect to those laws,
the power to effect arrests for offenses committed or alleged to have
been committed.

Id. We also considered the fact that a code enforcement officer

possesses “all the powers and duties conferred by law upon constables,” even
though at the same time no such officer “may perform a custodial arrest.” We
have recognized that

... a state constable is clearly recognized as a state officer, possessing
statewide law enforcement authority as a peace officer. Our Supreme

Court has stated that constables perform all the duties of law
enforcement officers and in particular “a constable stands on the same

footing as a sheriff.” State v. Franklin, 80 S.C. 332, 338, 60 S.E. 953,
955 (1908). In Allen v. Fidelity and Pepos. Co. of Md„ 515 F.Supp.
1185, 1189 (D.S.C. 1980), the Court noted that in 1870 constables
with general law enforcement powers existed at the city, local, county
and state levels together with county sheriffs and to a lesser extent

coroners, were the principal providers of law enforcement for the State
of South Carolina.

Op. Atty. Gen., January 25, 1996 (Informal Opinion).

Id. As such, we concluded “a Code Enforcement Officer could be deemed exempt from the
concealed weapons law pursuant to Subsection (1) of [section 16-23-20].” Id.

On numerous occasions, we have also determined a code enforcement officer appointed pursuant

to section 4-9-145 is a Class 3 officer requiring certification by the South Carolina Law
Enforcement Training Council. Ops. Atfy Gen., 2012 WL 4836949 (S.C.A.G. Oct. 2, 2012);

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September 8, 2023

2012 WL 1561867 (S.C.A.G. Apr. 19, 2012); 2009 WL 1649232 (S.C.A.G. May 6, 2009).

In

one of the 2012 opinions, we noted “[although Class 3 officers do not have the same powers and

duties of regular police officers such as deputies or state troopers, Class 3 officers are

nonetheless certified law enforcement officers with some, albeit limited, powers of arrest.” Op.
Atf y Gen., 2012 WL 4836949 (S.C.A.G. Oct. 2, 2012).

These opinions indicate various circumstances under which litter control and code enforcement
officers are considered law enforcement officers. We only found one opinion coming to the
opposite conclusion.

In 2000, we considered whether code enforcement officers could issue

uniform traffic tickets (“UTTs”). Op. Atf y Gen., 2000 WL 1803586 (S.C.A.G. Nov. 8, 2000).
First, we considered the law creating and prescribing the use of UTTs. Id.

Section 56-7-10 of

the South Carolina Code requires the use of UTTs by law enforcement officers in the arrest for

traffic offenses and certain other offenses listed in the statute, including litter offenses. Id. In
determining whether code enforcement officers are law enforcement officers for purposes of

issuing UTTs, we considered section 23-6-400(D)(l)' defining “law enforcement officer” for
purposes of requiring certification by the Department of Public Safety.

Section 23-6-400 (D)(1) provides that “law enforcement officer means an
appointed officer or employee hired by and regularly on the payroll of the
State or any of its political subdivisions, who is granted statutory authority to

enforce all or some of the criminal, traffic, and penal laws of the State and
who possesses, with respect to those laws, the power to effect arrests for
offenses committed or alleged to have been committed.” The definition is
broad with regard to the potential duties outlined for such an officer but

without exception, the officer must have the power to arrest offenders.

Id. We also considered prior opinions of this Office finding private security guards are law
enforcement officers for purposes of issuing UTTs because they have the authority to effectuate
arrests. Id. However, we acknowledged our prior opinions finding code enforcement officers are
law enforcement officers for purposes of utilizing blue lights and being exempt from concealed

weapons laws.

Id. We concluded, “While there seems to be conflicting authority, it is my

opinion that given the specific proscriptions of § 4-9-145, § 56-7-10 and other related statutes,
Code Enforcement Officers are not ‘law enforcement officers’ for the purposes of issuing
uniform traffic tickets.” Id.

'The Legislature repealed this provision in 2006 and replaced it with section 23-23-10 of the South Carolina Code,
which contains the same definition of “Law Enforcement Officer” for purposes of requiring certification by the Law
Enforcement Training Council.

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September 8, 2023

UTTs give a magistrate’s or municipal court jurisdiction to hear the offense without taking the
person into custody. S.C. Code Ann. § 56-7-1 0(C). In essence UTTs serve as a substitution for a
custodial arrest. Our 2000 opinion primarily relied on our understanding that the Legislature

intended those using UTTs have the authority to arrest. Op. Att’y Gen., 2000 WL 1803586
(S.C.A.G. Nov. 8, 2000). At the time of that opinion, section 4-9-145 prohibited code

enforcement officers from performing custodial arrests.2 Not long after we issued the opinion,
the Legislature amended section 4-9-145 to add subsection (B) giving litter control officers
limited power to make custodial arrests. 2001 S.C. Acts 109. We have not had the occasion to
revisit our 2000 opinion since the amendments to section 4-9-145, but we note the basis for our
2000 opinion has changed.

Additionally, we note that section 44-96- 170(H), unlike the UTT statute, does not indicate it may
only be enforced by those with the authority to make arrest. To the contrary, enforcement of this

statute involves the imposition of a fine.

Moreover, as explained in our prior opinions, while

code enforcement officers and some litter enforcement officers do not have the authority to make

arrest, they are hired by counties to enforce some portion of the law. They also are “vested with
all the powers and duties conferred by law upon constables.” A county may limit the scope of
their authority, but we believe a court would likely find that code enforcement and litter
enforcement officers have authority to enforce section 44-96- 170(H) because of the law
enforcement authority vested in them by the Legislature.
B. Are violations of the Act criminal or civil?
You also inquired as to whether violations of the Act are criminal or civil. Our Court of Appeals

explained the test for determining whether a penalty is criminal or civil in State v. Cuccia, 353
S.C. 430, 435-36, 578 S.E.2d 45, 48 (Ct. App. 2003) as follows citing State v. Price, 333 S.C.
267, 510 S.E.2d 215 (1998):

2 In 2000, section 4-9-145 stated as follows:
The governing body of a county may appoint and commission as many code enforcement
officers as may be necessary for the proper security, general welfare, and convenience of the
county. These officers are vested with all the powers and duties conferred by law upon
constables in addition to duties imposed upon them by the governing body of the county.
However, no code enforcement officer commissioned under this section may perform a

custodial arrest. These code enforcement officers shall exercise their powers on all private and
public property within the county. The governing body of the county may limit the scope of a
code enforcement officer’s authority or the geographic area for which he is authorized to
exercise the authority granted.
1996 S.C. Acts 373 (emphasis added).

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September 8, 2023

To determine whether a penalty is criminal or civil, a court must look to the
face of the statute and then determine if the statutory scheme is so punitive in

purpose or effect as to transform what was intended as a civil sanction into a
criminal penalty. Id. at 271, 510 S.E.2d at 218.
Whether a particular punishment is criminal or civil is, at least

initially, a matter of statutory construction. A court must first ask
whether the legislature, “in establishing the penalizing mechanism,
indicated either expressly or impliedly a preference for one label or the
other.” Even in those cases where the legislature “has indicated an

intention to establish a civil penalty, we have inquired further whether
the statutory scheme was so punitive either in purpose or effect,” as to
“transform] what was clearly intended as a civil remedy into a
criminal penalty.”

Hudson, 522 U.S. at 99, 118 S.Ct. at 493, 139 L.Ed.2d at 459 (internal

citations omitted); see also In re Matthews, 345 S.C. 638, 648, 550 S.E.2d
311,316 (2001) (“As the United States Supreme Court recently reiterated, the
determination whether a statute is civil or criminal is primarily a question of

statutory construction, which must begin by reference to the act’s text and
legislative history.”). “Only the clearest proof will suffice to override
legislative intent and transform what has been denominated as a civil remedy

into a criminal penalty.” Price, 333 S.C. at 271, 510 S.E.2d at 218; accord In
re Matthews, 345 S.C. at 648, 550 S.E.2d at 316. The Hudson Court
enunciated seven factors for determining if a statute constitutes a criminal
penalty:

(1)

[w]hether the sanction involves an affirmative disability or

restraint; (2) whether it has historically been regarded as a punishment;
(3) whether it comes into play only on a finding of scienter; (4)
whether its operation will promote the traditional aims of punishment

retribution and deterrence; (5) whether the behavior to which it applies

is already a crime; (6) whether an alternative purpose to which it may
rationally be connected is assignable for it; and (7) whether it appears
excessive in relation to the alternative purpose assigned.
Hudson,522 U.S. at 99-100, 118 S.Ct. at 493, 139 L.Ed.2d at 459.

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According to the Court of Appeals, we must look first to the statute itself to determine if the

Legislature expressly or impliedly intended to establish a penalizing mechanism. Although your
question is posed in terms of the Act, we believe you are specifically concerned with a violation

of section 44-96- 170(H), which imposes a fine “not to exceed two hundred dollars.” The fine is
not explicitly designated as either civil or criminal, thus we attempt to understand the
Legislature’s intent to create either a civil or criminal penalty for violating this statute. Looking
to the seven factors set forth by the Supreme Court in Hudson and adopted by the Court of

Appeals in Cuccia, we note historically fines have been regarded as a form of punishment. See
Jackson v. State, 331 S.C. 486, 489, 489 S.E.2d 915, 916 (1997) (“A sentence is not limited to a
term of imprisonment; instead, it may be either a term in prison or a fine or both.”).
Furthermore, this fine would promote the traditional aims of punishment-retribution and

deterrence as the threat of being fined would deter people from violating this statute. Portions of
section 44-96- 170(H) also require scienter as the person may be held liable under the statute for
“knowingly” disposing of waste tires other than at a permitted solid waste disposal facility or
“knowingly” disposing of waste tires on the property of another outside of the manner described

in chapter 96. However, a person can be subject to a fine for maintaining a waste tire collection
site without an element of scienter. Additionally, section 44-96- 170(H) does not involve an

affirmative disability or restraint, the behavior to which it applies is not already a crime, and we
are not aware of an alternative purpose to which it may rationally be connected that is assignable

for it.

Therefore, using the Hudson factors, we are unsure as to whether a court would find

violating section 44-96- 170(H) is criminal or civil.
In South Carolina State Highway Department v. Southern Railway Company, 239 S.C. 227, 122

S.E.2d 422 (1961), our Supreme Court considered a similar question of whether a statute
imposing a fine on railroads for failure to maintain crossings could be imposed by a civil or

action or required a criminal prosecution. The act imposing the fine stated:
‘Any persons failing to comply with the provisions of this act, after having
been notified by the proper authorities, in writing, and after the lapse of thirty

days from the date of such notice, shall, upon conviction, pay a fine of ten
dollars per day for each day's delay. It shall be the duty of the State Highway
Department to make a complaint to any court of competent jurisdiction within

the county where the offense is committed, and to furnish evidence before
such court whenever a violation of this act may occur.’

Id. at 228, 122 S.E. 2d. at 423 (quoting 1956 S.C. Acts 627).

The railroad argued the “upon

conviction” language required a criminal prosecution, but the Court disagreed explaining:
We are of the opinion that the Act in question imposes a penalty upon a
railroad violating its terms, which may be collected in a civil action at the

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instance of the State Highway Department, and that the lower Court was in
error in striking the allegations appropriate to the recovery thereof.
Section 3 of the Act, quoted above, provides that upon failure of any person to

comply with the provisions thereof, upon conviction, a fine of ten dollars per
day for each day’s delay shall be imposed, but does not make the violation of
its terms a criminal offense. While this section provides for the imposition of a
fine, we do not think that the word is used in the sense of punishment for
violation of a criminal statute. Rather, the word ‘fine’ is used in the broader
sense of a penalty. A fine is usually a sum of money exacted from a person

guilty of a crime as pecuniary punishment; while a penalty is a sum of money
exacted, by way of punishment for doing some act that is prohibited, or
omitting to do some act that is required to be done, which may or may not be a
crime. State v. Liggett & Myers Tobacco Co., 171 S.C. 511, 172 S.E. 857; 70

C.J.S. Penalties, p. 387, Section 1; 23 Am.Jur. 624, Sec. 28. The failure to
make a violation of the terms of the Act a criminal offense is indicative of the

legislative intent to use the word ‘fine’ in the sense of a penalty, and not in its
restricted sense as punishment for a crime. A similar conclusion was reached in
the foregoing case of State v. Liggett & Myers Tobacco Company.

Proceedings for the recovery of penalties can be either civil or criminal in
nature, and the mode in which penalties shall be enforced is a matter resting
within the discretion of the legislature, in each case to be determined from the
provisions of the particular statute in question. 70 C.J.S. Penalties, p. 397,
Section 8; 23 Am.Jur. 627, Section 34. However, where the statute fails to

designate the procedure for collection of the penalty, it may be collected by a
civil action. State v. Mathews, 3 S.C.L. (2 Brev.) 82; 23 Am.Jur. 644, Section
54; 70 C.J.S. Penalties, p. 398, Section 8(e).
Id. at 230-31, 122 S.E.2d at 424. (stating).

As we concluded in a 1996 opinion, “the use of the word ‘fine’ in a statute does not inevitably
lead to the conclusion that a criminal proceeding is contemplated.” Op. Att’y Gen., 1996 WL
494765 (S.C.A.G. July 25, 1996). Moreover, the Legislature does not refer to a violation of

section 44-96-170 as a criminal offense. Following Southern Railway Company, failure to make
a violation of the statute a criminal offense is indicative of the Legislative’s intent to use the

word “fine” in the sense of a penalty rather than punishment for a crime. Therefore, based on the
Supreme Courts holding in Southern Railway Company, we believe a court would likely find the

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fine imposed for violating section 44-96-170(11) is a civil violation.3

However,

this

determination is not free from doubt, and we suggest you seek guidance from a court or
clarification from the Legislature.

CONCLUSION

Based on the authority given to code enforcement and litter control officers, we believe a court
would likely find they arc law enforcement officials for purposes of enforcing section 44-96170(H) and therefore, able to enforce its provisions.

Based on our Supreme Court’s holding in

Southern Railway Company, we believe a court is likely to find the fine imposed under section

44-96-1 70(H) is a civil fine rather than a criminal penalty. However, this determination is not
free from doubt, and we suggest you seek clarification from a court or the Legislature.
Sincerely,

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General

' Wc note section 44-96-100 specifies both civil and criminal penalties for violation of regulations promulgated by

DHEC pursuant to section 44-96-170(11). However, the Legislature specifics in which cases the violation of those
regulations is civil or criminal.