Did the South Carolina AG decide whether Horry County’s child-oriented-business ordinance was constitutional?

Plain-English summary

In July 2022, the South Carolina Attorney General declined to give a definitive ruling on the constitutionality of Horry County Ordinance 24-2022, which restricted business licenses and work in child-oriented businesses for people covered by specified sex-offense rules. After the opinion request, the Legislature enacted H. 4075 with similar statewide restrictions. The office recommended applying the new state law in place of the county ordinance; doing so would make the ordinance-validity question moot for the situation presented.

The office noted that the state law and ordinance were similar but not identical. It described the ordinance as presumed valid unless a court set it aside, while still recommending the state route to avoid uncertainty.

What this means for you

Horry County officials and license administrators

The opinion recommended following the state enactment for child-oriented-business restrictions, rather than resolving the county ordinance's constitutionality. It did not purport to strike down the county ordinance or decide every difference between the two texts.

Solicitors and affected businesses

The office described the new state law as prohibiting certain sex offenders from operating, working for, being employed by, or volunteering for a child-oriented business. It gave no factual ruling about any particular person or business.

Common questions

Q: Did the AG rule Horry County Ordinance 24-2022 unconstitutional? A: No. The office said that following the newly enacted state law would make the ordinance question moot and did not decide the ordinance's validity.

Q: Why did the AG recommend using the state law?
A: The office said H. 4075 served a similar purpose and that following it would avoid uncertainty about enforcing the county ordinance.

Q: Were the county and state rules identical?
A: No. The opinion said they were not identical, although both aimed to restrict certain sex offenders from involvement in child-oriented businesses.

Background and statutory framework

A circuit solicitor asked the office to review the county ordinance after the treasurer, responsible for business licensing, raised its constitutionality. The Attorney General explained that the Legislature had since enacted H. 4075 in response to a state Supreme Court ruling on the lifetime registry requirement. The office invoked its policy against issuing opinions on moot questions and recommended following the new state law instead of adjudicating the ordinance question.

Citations and references

• S.C. Code Ann. § 23-3-430: registry provision discussed in the opinion.
• H. 4075: enacted state legislation described in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/review-of-a-horry-county-ordinance-that-limits-where-people-who-are-on-the-sex-registry-can-work/
• Original PDF: https://www.scag.gov/media/g40oewkn/03041159.pdf

Original opinion text

Alan Wilson
ATTORNEY GENERAL

July 8, 2022

The Honorable Jimmy A. Richardson, II, Solicitor
Fifteenth Judicial Circuit
P.O. Box 1276
Conway, SC 29528

Dear Solicitor Richardson:

You note that “[r]ecently Horry County passed an Ordinance [attached] that limits where people who are on the Sex Registry can work.” You further state that
[o]ur local Treasurer, Angie Jones, has been tasked with enforcing this as she has to issue and control Business License[s]. She asked me if the Ordinance was constitutional. By this letter, I defer to answer but respectfully request an Attorney General’s Opinion on the constitutionality of Horry County Ordinance 24-2022.

Since your request was made, the General Assembly enacted H. 4075 in response to the State Supreme Court decision in Powell v. Keel, 433 S.C. 457, 860 S.E.2d 830 (2021), which declared the lifetime requirement of the Sex Offender Registry law (S.C. Code Ann. § 23-3-430),

without any opportunity for removal, to be unconstitutional. As part of H. 4075, the Legislature included many of the same prohibitions concerning the involvement of sex offenders in “childoriented businesses” as are found in the Ordinance. Clearly, the purpose of both enactments is the same - the preclusion of certain sex offenders from working in “child-oriented businesses.” Given these developments regarding the enactment of H. 4075, we recommend that the new State law be followed in lieu of the Ordinance. If so, your question regarding the validity of the Ordinance is rendered moot.

While the amended statute and the Ordinance are not on “all fours” with each other with

respect to the prohibition of certain sex offenders working in “child-oriented businesses,” they are indeed very similar. The goal of the Ordinance is “to protect minors by prohibiting any person that has been convicted of particular criminal activities, or is required to register as a sex

offender from acquiring a business license to operate a child-oriented enterprise, and from working at a child-oriented enterprise. . . .” (emphasis added). These goals closely overlap with

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The Honorable Jimmy A. Richardson, II, Solicitor
Page 2
July 8, 2022

those of I I. 4075, which makes it unlawful for a sex offender convicted of certain offenses “to

operate, work for, be employed by, or volunteer for a child-oriented business” and providing criminal offenses therefor. It has long been the policy of this Office “not to issue an opinion on any question which has or will become moot.” Op. S.C. Atfy Gen,, 1999 WL 1425994 (Oct. 27, 1999). Thus, while the Ordinance is a legislative enactment, and is presumed valid unless set aside by a court, to avoid any possibility of legal uncertainty with respect to enforcement of the Ordinance, we

recommend that II. 4075 be followed.

See Art. VIII, § 14 of the South Carolina Constitution

[general law shall not be set aside by ordinance where general law involves “. . . (6) the structure and administration of any governmental service or function, responsibility for which rests with

the State government or which requires statewide uniformity. . . .”].

If II. 4075 is enforced,

rather than the Ordinance, no question of constitutionality is raised, thereby rendering your

question moot.

Local officials may enforce the provisions of H. 4075 related to “child-oriented

businesses” with the satisfaction of knowing that the overriding purpose of the Ordinance is still being fulfilled. In our view, H. 4075 is constitutional and should be enforced.

Sincerely,

Robert D. Cook
Solicitor General