Could a South Carolina city impose jail time for drug paraphernalia possession when state law set only a civil fine?

Plain-English summary

Rock Hill’s city attorney asked whether a municipal drug paraphernalia ordinance could authorize up to 30 days in jail even though state law imposed a civil fine. The Attorney General stood by a 2004 opinion finding a local criminal ordinance valid. It reasoned that the ordinance did not displace a state criminal penalty because the cited state paraphernalia law imposed a civil penalty.

The 2009 letter emphasized that case law in this area was ambiguous. It distinguished a case in which a local marijuana ordinance had set a sentence outside the state criminal-law penalty parameters, but also cited a decision pointing the other way in another setting. The office suggested seeking a declaratory judgment to resolve the paraphernalia issue with finality. Its answer was a reaffirmation of an earlier Attorney General view, not a court ruling on Rock Hill’s ordinance.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG say a city’s paraphernalia jail penalty was valid? A: The office reaffirmed its earlier view that a local ordinance with a criminal penalty could be valid where the cited state paraphernalia law imposed a civil fine. It cautioned that the governing case law was ambiguous.

Q: Why did the AG distinguish the marijuana penalty case? A: In that case, a state criminal statute set the permissible penalty range and the local ordinance imposed a different mandatory sentence. The office said the paraphernalia statute in this request imposed only a civil penalty.

Q: Was Rock Hill’s specific ordinance finally upheld by a court? A: The opinion did not report a final court ruling on the ordinance. It suggested a declaratory judgment to resolve the question with finality.

Q: Did the 2009 opinion reverse the AG’s 2004 view?
A: No. It said the office generally presumed its earlier opinions correct and continued to follow the July 2004 paraphernalia conclusion.

Background and statutory framework

The request compared a possible municipal jail sentence with the civil fine in S.C. Code Ann. § 44-53-391. The Attorney General referred to a July 2004 opinion that had found valid a local ordinance criminalizing possession of paraphernalia with a fine or a jail term of up to 30 days. Under the office’s practice, it would not reverse an earlier opinion absent clear error or changed law.

The letter discussed City of North Charleston v. Harper, where the state had set criminal penalties for marijuana possession and a city ordinance imposed a mandatory 30-day sentence. The office said that case did not appear to control a paraphernalia ordinance because the state paraphernalia penalty was civil. It acknowledged other ambiguous decisions and a contrary suggestion in a 1988 opinion footnote, then recommended a declaratory judgment.

Citations and references

Statute and cases discussed: S.C. Code Ann. § 44-53-391; City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569 (1991); and Connor v. Town of Hilton Head, 314 S.C. 251, 442 S.E.2d 608 (1994).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-10-2009-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/thompkins-r-b-os-8862-9-10-09-drug-paraphernalia-ordinance.pdf

Original opinion text

HENRY McMASTElR
ATTORN.EY GENER.A.I.

September 10, 2009

R. Brent Thompkins, Esquire
Rock Hill City Attorney
P. 0. Box 790
Rock Hill, South Carolina 29731-6790
Dear Mr. Thompkins:

In a letter to this office you questioned whether a municipality may constitutionally impose a jail sentence of up to thirty days imprisonment for a violation of a drug paraphernalia ordinance even though state law only imposes a civil fine for such a violat1on. Reference is made to S.C. Code Ann. § 44-53-391 which states that "[i)t shall be unlawful for any person to advertise for sale, manufacture, possess, sell or deliver, or to possess with the intent to deliver, or sell ... (drug) ... paraphernalia." A violation of such State statute is " ...a civil fine of not more than five hundred dollars except that a corporation shall be subject to a civil fine of not more than fifty thousand dollars." As you pointed out in your letter, this office in an opinion dated July 1, 2004 dealt with the question of whether a local ordinance that made the possession of drug paraphernalia a criminal offense subject to a penalty of not more than two hundred dollars or a term of imprisonment not exceeding thirty days was superseded by Section 44-53-301 . Noting the general presumption of the validity of a municipal ordinance along with other supporting case law, this office concluded that the ordinance was valid. I am enclosing a copy of that opinion for your review which sets forth the case law supporting such interpretation. Generally, as stated in a prior opinion of this office dated June 4, 1991, it is the policy ofthis Office that where a prior opinion governs, this Office will not issue a new opinion and will presume that the prior opinion is correct. We will not reverse a prior opinion unless such prior opinion is clearly erroneous or the applicable law has been changed. See also: Op.Atty.Gen., October 3, 1986.

REMBERT c. DENNIS BUILDING • P OST OrncEBox 11549 • COLUMBIA , SC 29211 -1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Thompkins
Page2
September 10, 2009

Admittedly, the case law in this area is somewhat ambiguous. See, e.g., Beachfront Entertainment, Inc. v. TownofSullivan'sisland, 379 S.C. 602, 666 S.E.2d 912 (2008) and Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008). However, the decision in City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569 (1991) cited by you does not appear to control. In the situation before the Court, there was a state statute that set a penalty for the offense of simple possession of a marijuana of a term of imprisonment not to exceed thirty days or a fine of not less than one hundred dollars nor more than two hundred dollars. The city ordinance provided a mandatory sentence of a term of imprisonment of thirty days. The Court stated that
[t ]he legislature has provided parameters within which local governments may enact ordinances dealing with the criminal offense of simple possession ofmarijuana. This legislation occupies the field as far as penalties for this offense are concerned. Local governments may not enact ordinances that impose greater or lesser penalties than those established by these parameters. (emphasis added). 306 S.C. at 156. The Court cited a violation of Article VIII, Section 14 of the State Constitution which limits the powers of local governments by providing that " .. .local governments may not attempt to set aside state "criminal laws and the penalties and sanctions in the transgression thereof.. .. " Id. It does not appear that Harper controls inasmuch as the municipal ordinance in establishing a term of imprisonment for the violation does not attempt to set aside a criminal law inasmuch as the State law on drug paraphernalia only establishes a civil penalty. But see: Connor v. Town of Hilton Head, 314 S.C. 251, 442 S.E.2d 608 (1994) (a municipality cannot criminalize nude dancing where relevant State law does not). While the prior opinion of this office dated September 1, 1988 also cited by you suggested in a footnote a contrary conclusion to the July 1, 2004 opinion referenced above, it did state that "[i]t is generally recognized that a criminal penalty of a fine or imprisonment is distinguishable from a civil fine." While this office in its opinion dated July 1, 2004 concluded that a local ordinance that made the possession of drug paraphernalia a criminal offense subject to a penalty of not more than two hundred dollars or a term of imprisonment of thirty days was valid, because of the ambiguity of the law in this area generally, in order to resolve this matter, consideration should be given to seeking a declaratory judgment which would resolve the matter with finality.

Mr. Thompkins
Page3
September 10, 2009

With kind regards, I am,
Very truly yours,
Henry McMaster
Attorney General

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By:

REVIEWED AND APPROVED BY:

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Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General