Can a South Carolina code enforcement officer prosecute ordinance violations in magistrate's court without it being the unauthorized practice of law?

Plain-English summary

A magistrate in Berkeley County had been dismissing ordinance violation cases when code enforcement officers tried to prosecute them. The magistrate cited a 2013 AG opinion saying private citizens cannot prosecute in magistrate's court. Senator Larry Grooms asked the AG whether code enforcement officers fall into the same prohibition.

The Attorney General concluded the magistrate is wrong. The 2013 opinion is not on point. Code enforcement officers are not private citizens; they are public officers commissioned under § 4-9-145 (counties) or § 5-7-32 (municipalities), they are vested with all the powers and duties of constables, they exercise the sovereign police power of the State, they are sworn to uphold the law, they receive Criminal Justice Academy training, and they are not bound by any commercial or partisan interest. The Supreme Court's prohibition in In re Richland County Magistrate's Court targeted "interested" non-lawyer prosecutors representing private corporations, not sworn public officers exercising sovereign authority.

The AG opinion stresses two important caveats. First, the opinion is advisory, only the South Carolina Supreme Court can definitively decide whether a particular prosecution constitutes the unauthorized practice of law. Second, the AG suggests this question would benefit from a clarifying ruling from the Supreme Court because the prosecution of ordinance cases by code enforcement officers is "common throughout the State."

What this means for you

If you are a magistrate

Refusing to let code enforcement officers prosecute ordinance cases will likely be reversed on appeal, and the AG's 2025 opinion now publicly says so. Two practical points:

1. Understand the distinction. In re Richland County Magistrate's Court (2010) prohibited a non-lawyer field agent of a private business from prosecuting a worthless-check case. The non-lawyer there represented a corporation with a financial stake. A code enforcement officer is a sworn public officer enforcing a county or city ordinance. The cases are not analogous.
2. Don't dismiss for a non-jurisdictional reason. Section 56-7-80 expressly gives magistrate's courts jurisdiction over ordinance summonses issued by code enforcement officers. Dismissing such cases sua sponte for "unauthorized practice of law" creates an appeal record and exposes the County to a writ.

If you are a county or municipal code enforcement officer

This opinion is your support if a magistrate questions your authority. You can hand them a copy. Practical pointers:

1. Cite § 56-7-80 and this opinion (OS-11048, July 22, 2025). That should resolve most magistrate-level pushback.
2. Be prepared to call the solicitor's office for back-up. A solicitor "is deemed to maintain control of any case brought in Magistrate's Court" (citing the 2005 AG opinion). The solicitor's silent endorsement of your prosecution is a strong response to a defense argument that you are practicing law without a license.
3. Document your training. Your Class 3 certification and Criminal Justice Academy training are part of the basis for treating you as a public officer exercising sovereign power. Keep your certifications current and accessible.

If you are a defense attorney challenging an ordinance prosecution

Your strongest move is no longer to argue the code enforcement officer cannot prosecute at all. The AG opinion now publicly disagrees. Your better moves:

1. Challenge sufficiency of the summons or the underlying ordinance. A facially defective summons is dismissable.
2. Force the solicitor's office to take a position. If the solicitor expressly disclaims supervision, you have a Bridgers-style argument that no one with sovereign authority is in control of the prosecution.
3. If the case is unusual or large-stakes, consider invoking the Supreme Court's exclusive authority. Ask for a stay and pursue an interlocutory route to the Supreme Court if the issue is genuinely outcome-determinative.

If you are a county or municipal attorney

This opinion gives you the structure for a clear written policy on code enforcement officer prosecutions. Two recommendations:

1. Coordinate with your local solicitor. Get a written memorandum of understanding under which the solicitor accepts that code enforcement officers will prosecute ordinance cases in magistrate's court, with an escalation path to the solicitor for any case that becomes contested or has any criminal-law complication.
2. Train code enforcement officers on the prosecutor role. They are not lawyers; they need scripts for direct examination, cross-examination, and a clear sense of what they cannot do (impeach witnesses with documents not in evidence, argue legal conclusions). The cleaner the prosecution, the less appellate exposure.

If you are a state legislator

The AG explicitly notes the Supreme Court has "never held that officers must possess the power to make custodial arrests in order to prosecute in Magistrate's Court" and that "the Court is very open to issuing its opinion regarding the practice of law in this area." If you want certainty, the cleanest fix is statutory. A short amendment to § 56-7-80 expressly authorizing code enforcement officers to prosecute ordinance violations in magistrate's court would close the question.

Common questions

Q: What is the unauthorized practice of law?
A: Practicing law without a license. In South Carolina, the Supreme Court has exclusive constitutional authority to decide what counts (S.C. Const. art. V, § 4). The Court has approved certain non-lawyer prosecutions, traffic-related offenses by Highway Patrol officers (State v. Messervy), security officer prosecutions (City of Easley v. Cartee), and law enforcement officer prosecutions in magistrate's court generally (State v. Bridgers), because in each case the prosecutor was a public officer exercising sovereign power.

Q: How is a code enforcement officer different from a private citizen?
A: A code enforcement officer is appointed by the county or municipality under § 4-9-145 or § 5-7-32, takes an oath, has constable powers (§ 4-9-145), is required to attend Criminal Justice Academy training (§ 23-23-16), and is a Class 3 law enforcement officer. They exercise sovereign police power on behalf of the public. A private citizen has none of those characteristics; they have private interests they are pursuing through the courts.

Q: Can a code enforcement officer make a custodial arrest?
A: No. Section 4-9-145 expressly says a code enforcement officer "may not perform a custodial arrest." That is a real limit on their authority, but the AG opinion says it does not undercut their ability to prosecute. The Supreme Court "has never held that officers must possess the power to make custodial arrests in order to prosecute in Magistrate's Court."

Q: Does the solicitor have to be involved?
A: The 2005 AG opinion says "a solicitor is deemed to maintain control of any case brought in Magistrate's Court." Practically, the solicitor doesn't have to attend every ordinance hearing, but they retain ultimate authority. If a code enforcement officer is uncertain about a case, they can refer it to the solicitor's office.

Q: What if the ordinance violation could result in jail time?
A: Section 22-3-550 caps magistrate's court sentencing power. The AG opinion in In re Richland County worried about non-lawyer prosecution where "his prosecution may result in the imprisonment of the defendant." A code enforcement officer prosecuting an ordinance with jail-time penalties should at minimum coordinate with the solicitor before pressing for a custodial sentence. The AG opinion does not explicitly limit code enforcement officer prosecutions to civil-fine-only ordinances, but practical caution suggests treating jail-time ordinance prosecutions as ones that need solicitor involvement.

Q: Does this opinion authorize anyone else to prosecute in magistrate's court?
A: No. The opinion narrowly addresses code enforcement officers under § 4-9-145 and § 5-7-32. It does not authorize litter control officers, animal control officers, or other municipal employees who lack constable powers to prosecute. Those would each need their own analysis of whether the officer is sworn and exercises sovereign police power.

Background and statutory framework

South Carolina's magistrate's court is a court of limited jurisdiction handling minor criminal cases (sentencing capped under § 22-3-550) and many municipal and county ordinance violations. Section 56-7-80 created the uniform ordinance summons specifically to channel code enforcement actions into magistrate's court. The statute names "law enforcement officers and code enforcement officers" together as the issuers, which the AG reads as legislative confirmation that both can prosecute the resulting cases.

The Supreme Court's case law on non-lawyer prosecution distinguishes carefully between "public officers" exercising sovereign authority (allowed) and "interested" non-lawyers representing private parties (not allowed). State v. Bridgers and In re Richland County Magistrate's Court are the two anchors. Bridgers approved Highway Patrol officer prosecutions because the officer is "charged with the discretionary exercise of the sovereign power." In re Richland County prohibited a corporate field agent's prosecution because the agent was not a public officer and was acting for the corporation's interests. The AG opinion places code enforcement officers on the Bridgers side of that line.

The dual office holding analysis from a 2012 AG opinion is also load-bearing: by holding that a code enforcement officer is an "officer for dual office holding purposes," the AG had already concluded the code enforcement officer exercises a portion of the sovereign power. That conclusion is the foundation for the prosecution-authority question here.

Citations and references

Statutes:
- S.C. Code Ann. § 4-9-145 (county code enforcement officer authority and constable powers)
- S.C. Code Ann. § 5-7-32 (municipal code enforcement officer authority)
- S.C. Code Ann. § 56-7-80 (uniform ordinance summons; magistrate's court jurisdiction)
- S.C. Const. art. V, § 4 (Supreme Court's exclusive authority over practice of law)

Cases:
- In re Richland County Magistrate's Court, 389 S.C. 408, 699 S.E.2d 161 (2010) (non-lawyer corporate field agent cannot prosecute)
- State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997) (law enforcement officer prosecution sanctioned)
- State v. Messervy, 258 S.C. 110, 187 S.E.2d 524 (1972) (Highway Patrol officer prosecution)
- City of Easley v. Cartee, 309 S.C. 420, 424 S.E.2d 491 (1992) (security officer misdemeanor prosecution)
- State v. Franklin, 80 S.C. 332, 60 S.E. 953 (1908) (constable as state officer)
- Allen v. Fidelity and Depos. Co. of Md., 515 F.Supp. 1185 (D.S.C. 1980) (constables historically exercised general law enforcement powers)
- State v. Luster, 178 S.C. 199, 182 S.E. 427 (1935) (constable powers)

Earlier AG opinions referenced:
- Op. S.C. Att'y Gen., 2013 WL 3762705 (July 9, 2013) (private citizen cannot prosecute in magistrate's court)
- Op. S.C. Att'y Gen., 2012 WL 1154553 (March 27, 2012) (code enforcement officer is public officer for dual office holding)
- Op. S.C. Att'y Gen., 2012 WL 5376055 (Oct. 19, 2012) (magistrate's court has jurisdiction over ordinance summons cases)
- Op. S.C. Att'y Gen., 2023 WL 6036769 (Sept. 8, 2023) (review of code enforcement officer powers)
- Op. S.C. Att'y Gen., 2005 WL 3352851 (Nov. 28, 2005) (solicitor maintains control of magistrate's court cases)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-who-may-prosecute-a-case-in-magistrate-court-for-ordinance-code-violations/
• Original PDF: https://www.scag.gov/media/pklevfmf/groomsl-os-11048-final-opinion-7-22-2025.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

July 22, 2025

The Honorable Lawrence K. Grooms, Member
South Carolina Senate
P.O. Box 142
Columbia, SC 29202

Dear Senator Grooms:

You seek an opinion as to who may prosecute a case in magistrate court for ordinance code violations. You note that a magistrate in Berkeley County "has been dismissing cases for ordinance code violations in the county if a code enforcement officer attempts to prosecute code violations in her court."

You reference our opinion in 2013 regarding prosecutions in Magistrate's Court by a private citizen and provide the following information:

In 2013, your office issued an opinion to The Honorable C. Ryan Johnson, a magistrate in Greenwood County, related to whether a private party can prosecute a criminal case in magistrate's court. That opinion is the basis upon which the magistrate in Berkeley County is prohibiting code enforcement officers from prosecuting cases in her court.

Your letter continues:

Your 2013 opinion concluded that, based upon the Supreme Court's holding in In re Richland County Magistrate's Court, 389 S.C. 408, 699 S.E.2d 161 (2010), "a court would likely hold a non-lawyer, private citizen is prohibited from prosecuting a courtesy summons case in magistrate's court." The Supreme Court's decision in In re Richland County Magistrate's Court was based in part upon the fact that a non-lawyer, private citizen cannot be presumed to "act in the interests of the community" and cannot exercise the sovereign power of the State. Moreover, the Supreme Court's decision In re Richland County Magistrate's Court favorably cited State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997) in which the Court upheld law enforcement officers prosecuting cases in magistrate's court because law enforcement officers "are charged with the discretionary exercise of the sovereign power."

I believe that the magistrate is misapplying with the conclusion that you reached in your 2013 opinion. For example, S.C. Code § 56-7-80 vests with law enforcement officers and code enforcement officers the authority to enforce county and municipal ordinances, regulates the use of uniform ordinance summons by law enforcement officers and code enforcement officers, and vests "all magistrates' ... courts with jurisdiction to hear and dispose of the charge for which the ordinance summons was issued and served." That means that a code enforcement officer is statutorily empowered to "act in the interests of the community" and exercise a portion of the sovereign power. Therefore, S.C. Code § 56-7-80 alone demonstrates the flaw in the Berkeley County magistrate's reasoning.

In light of the foregoing, please advise me of your opinion as to whether a code enforcement officer is permitted to prosecute cases in Magistrate's court.

The 2013 opinion recognized that only the South Carolina Supreme Court may determine whether a particular activity does or does not constitute the unauthorized practice of law. See S.C. Const. art. V, § 4 ("The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted."). Thus, while we may provide you with our advisory opinion, unless and until the Court gives its approval, such action by a Code Enforcement Officer, in prosecuting cases in Magistrate's Court, is not recognized as an exception to the unauthorized practice of law. The Court has previously given its approval in a number of instances where law enforcement officers may prosecute their cases in Magistrate's Court, but we are unaware that the Court has yet addressed Code Enforcement Officers prosecuting a violation of an ordinance. We understand, however, that such prosecutions are common throughout the State.

Law/Analysis

In Op. S.C. Att'y Gen., 2013 WL 1695517 (March 26, 2013), we discussed the In re Richland Co. Magistrate's Court case at considerable length. We noted that the decision "... only reaffirmed the Court's concerns regarding the unauthorized practice of law by non-attorneys in Magistrate's court... ." We further explained that the Court "addressed a prosecution for the recovery of worthless checks by a non-lawyer field agent from a local business acting as the prosecutor." We stated:

"[s]ignificantly, the Court discussed its previous decisions permitting non-solicitors to prosecute criminal cases in magistrate's court... ." noting that the Supreme Court stated:

[The Solicitor] correctly notes this Court has previously permitted persons other than solicitors to prosecute criminal cases in Magistrate's Court. See, e.g. State v. Messervy, 258 S.C. 110, 187 S.E.2d 524 (1972); City of Easley v. Cartee, 309 S.C. 420, 424 S.E.2d 491 (1992). Though this Court sanctioned the practices of allowing the arresting South Carolina Highway Patrol Officer to prosecute traffic-related offenses and licensed security officers to prosecute misdemeanor cases in Magistrate's Court such non-attorneys are law enforcement officers acting in the capacity of public officials and are sworn to uphold the law. See Messervy, 258 S.C. at 112, 187 S.E.2d at 525; Cartee, 309 S.C. at 422, 424 S.E.2d at 491; S.C. Code Ann. § 8-11-20 (2009). Consequently, they act on behalf of the State. See State v. Bridgers, 329 S.C. 11, 14, 495 S.E.2d 196, 198 (1997) ("[A]s law enforcement officers, they are charged with the discretionary exercise of the sovereign power. Specifically, they must enforce the 'traffic and other related laws'"). This classification was essential to the Court's holding in Cartee. ... As a non-lawyer representing a corporation is not a law enforcement officer, we cannot assume he will act in the interests of the community. Moreover, as a non-lawyer, the representative of the corporation is not bound by the professional ethical restraints. Consequently, the non-lawyer prosecutor not only acts on interests other than those of the community but is also not bound by ethical rules, yet his prosecution may result in the imprisonment of the defendant. See S.C. Code Ann. § 22-3-550 (2007).

699 S.E.2d at 164-65. Accordingly, the Court concluded:

[t]he dignity and might of the State are brought to bear on decisions to prosecute. These decisions must not be made by interested parties. We therefore find that a non-lawyer's representation of a business entity in criminal magistrate's court runs afoul of South Carolina law, is repugnant to our system of justice and constitutes the unauthorized practice of law.

We agree with you that the 2013 opinion is considerably different from the situation where a Code Enforcement Officer prosecutes criminal ordinances in Magistrate's Court. By contrast, a Code Enforcement Officer is a public officer who exercises the sovereignty of the State (a political subdivision of the State) in issuing an ordinance summons against a person violating an Ordinance of the County or Municipality. While the Code Enforcement Officer is prohibited from making a custodial arrest, he or she is, nevertheless, enforcing the law against a violator as a law enforcement officer. Such does not merely involve the prosecution by a private party as was the case in our 2013 opinion. Instead, as we have previously concluded, in Op. S.C. Att'y Gen., 2012 WL 1154553 (March 27, 2012), a Code Enforcement Officer is a public officer exercising sovereign power. There, we concluded:

[t]he appointment of county code enforcement officers is authorized by S.C. Code § 4-9-145 (Supp. 1996). Pursuant to this statute, the governing body of the 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. Code enforcement officers are vested with all the powers and duties conferred by law upon constables in addition to the duties imposed upon them by the governing body of the county. Id. These code enforcement officers are authorized to exercise their powers on all private and public property within the County. Id. Code enforcement officers commissioned under this statute are not permitted to perform a custodial arrest. Id. However, they are authorized to issue an ordinance summons to cite a violation of a county ordinance. S.C. Code Ann. § 56-7-80 (Supp. 1996).

Based on the foregoing description of the powers of a code enforcement officer, it is apparent that the officer exercises one of the traditional sovereign powers of the State: police power. While code enforcement officers are not given the power to perform a custodial arrest, they are given many of the other powers traditionally accorded to peace officers in this State, including the power to issue an ordinance summons on behalf of the County. Accordingly, ... a code enforcement officer for the Aiken County Tax Collector's Office would be considered an officer for dual office holding purposes.

That 2012 Opinion went on to conclude that "[t]he same reasoning would apply to a code enforcement officer of a municipality." (citing § 5-7-32 as similar to § 4-9-145).

Most recently, in Op. S.C. Att'y Gen., 2023 WL 6036769 (September 8, 2023), we reviewed in considerable detail our previous opinions concerning the powers and duties of code enforcement officers. Citing the statute defining "law enforcement officer" for purposes of the Law Enforcement Officer Act, we observed that a code enforcement officer is "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." We have considered code enforcement officers law enforcement officers for the most part.

Also, in a 2012 opinion, we concluded that an ordinance summons issued by a Code Enforcement Officer, pursuant to § 56-7-80, bestows jurisdiction upon the Magistrate's Court as to ordinance violations cited by the Code Enforcement Officer. There, we stated:

[f]urther, § 56-7-80 provides for counties and municipalities to adopt and use an ordinance summons for the enforcement of ordinances by law enforcement and code enforcement officers. A uniform ordinance summons may not be used to perform a custodial arrest. See § 56-7-80(B). The ordinance summons gives the code enforcement officer an alternative method for enforcing ordinances and gives the magistrate's court jurisdiction over the matter without the code enforcement officer having to resort to the use of a ticket or arrest warrant.

Op. S.C. Att'y Gen., 2012 WL 5376055 (Oct. 19, 2012).

Finally, we know of no statute prohibiting a Code Enforcement Officer from prosecuting ordinance violations in Magistrate's Court. See State v. Messervy, supra. ["In New Hampshire, as in South Carolina, there was no statute prohibiting a police officer from prosecuting a case."]. Indeed, the statutory law [§ 56-7-80] provides a Code Enforcement Officer "an alternative method for enforcing ordinances" by providing a means to give the Magistrate's Court jurisdiction over the matter, much like a Uniform Traffic Ticket or an arrest warrant does. Thus, rather than prohibiting a Code Enforcement Officer from prosecuting ordinance cases in Magistrate's Court, § 56-7-80 appears to anticipate such prosecution.

Conclusion

We agree with you that our 2013 Opinion to Judge Ryan Johnson is not on point with respect to a Code Enforcement Officer. In sharp contrast to the 2013 Opinion, which involved a private party seeking to prosecute in Magistrate's Court, a Code Enforcement Officer "exercises one of the traditional sovereign powers of the State: police power. While code enforcement officers are not given the power to perform a custodial arrest, they are given many of the other powers traditionally accorded to peace officers in this State, including the power to issue an ordinance summons on behalf of the county." Op. S.C. Att'y Gen., 2012 WL 1154553 (March 27, 2012). Thus, they are officers who possess the powers and duties of constables and, for that reason, we consider them to be law enforcement officers.

The Supreme Court has never held that officers must possess the power to make custodial arrests in order to prosecute in Magistrate's Court. We know of no statute prohibiting such activity. Messervy, supra. As the Court found in State v. Bridgers, supra, the key to allowing prosecutions which do not constitute the unauthorized practice of law is that the public officer is "charged with the discretionary exercise of the sovereign power." 329 S.C. at 14, 495 S.E.2d at 198. Here, as was recognized in In re Richland County Magistrate's Court, supra, unlike a private party, a public officer, such as a Code Enforcement Officer, is sworn to uphold the law, and act in the interests of the community at large. Accordingly, it is our opinion, based upon the previous criteria, that the Court would likely allow a Code Enforcement Officer to prosecute ordinance criminal violations in Magistrate's Court.

Of course, our opinion herein is advisory only. Unless and until the Supreme Court, which has the exclusive authority to determine whether or not an activity constitutes the unauthorized practice of law, concludes that Code Enforcement Officers may prosecute ordinances in magistrates or municipal court, we can only predict how the Court might rule. Only the Supreme Court may approve such prosecutions. We understand the Court is very open to issuing its opinion regarding the practice of law in this area. Thus, such opinion should most probably be sought for the purpose of clarification.

Sincerely,

Robert D. Cook
Solicitor General