Barnhill v. City of North Myrtle Beach
| Decision Date | 18 January 1999 |
| Docket Number | No. 24881.,24881. |
| Citation | 511 S.E.2d 361,333 S.C. 482 |
| Parties | Bob BARNHILL, Individually and d/b/a Bob's Watersports and d/b/a Bob's Bikes, Respondent, v. CITY OF NORTH MYRTLE BEACH, Appellant. |
| Court | South Carolina Supreme Court |
Charles E. Carpenter Jr. and S. Elizabeth Brosnan, both of Richardson, Plowden, Carpenter & Robinson, P.A., of Columbia; and Douglas C. Baxter, of Richardson, Plowden, Carpenter & Robinson, P.A., of Myrtle Beach, for appellant.
Thomas A. Boland, Sr., of Florence; and Howell V. Bellamy, Jr., of Bellamy Law Firm, of Myrtle Beach, for respondent.
Respondent Barnhill commenced this action challenging in part appellant's (City's) ordinance restricting the launching and beaching of motorized watercraft, including jet skis, on the public beach. We reverse that portion of the trial court's order finding the ordinance invalid.
In 1992, Respondent Barnhill operated a jet ski rental business near the beach pursuant to a business license issued by City. At the time his license was issued, Ordinance 5-11 required that jet skis be launched or beached only in specified areas of the beach. City subsequently amended Ordinance 5-11 by adding subsection (c) which prohibits launching or beaching jet skis between 9:00 a.m. and 5:00 p.m. from May 15 to September 15 annually with the exception of government or authorized watercraft.
After City began enforcing the new ordinance, Barnhill commenced this declaratory judgment action challenging the ordinance's validity and seeking an injunction against its enforcement. The case was referred to a special referee. The referee found Ordinance 5-11(c) invalid because it exceeded City's police power and was inconsistent with the Constitution and general law of the State. Further, he found the ordinance violated several federal constitutional provisions. City appeals.
Under S.C.Code Ann. § 5-7-30 (Supp.1997), a municipality 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 ....
Under this section, municipalities enjoy a broad grant of power regarding ordinances that promote safety. Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990). The exercise of a municipality's police power is valid if it is not arbitrary and has a reasonable relation to a lawful purpose. Id. Under S.C.Code Ann. § 5-7-140 (Supp.1997), City's jurisdiction includes the public beach.1
The launching and beaching of motorized watercraft are activities that occur on the public beach. Restricting launching and beaching is reasonably related to promoting safety during the summer tourist season when beaches are crowded. Moreover, the restriction is reasonable since it limits motorized watercraft only during hours when the beach is most used by the public for swimming. We find this restriction is within City's police power.
The referee concluded Ordinance 5-11(c) was inconsistent with statewide statutes in Title 50 that preempt regulation of watercraft on navigable waters. See S.C.Code Ann. § 50-21-870 (Supp.1997) (); see also § 50-21-820 (Supp.1997) (); § 50-21-110 (Supp.1997) ().
While we agree the State has preempted the entire field of regulating watercraft on navigable waters as provided in Title 50, see S.C.Code Ann. § 50-21-30 (Supp.1997),2 we find no inconsistency with City's regulation of activity on the public beach.
In order for there to be a conflict between a state statute and a municipal ordinance, both must contain either express or implied conditions that are inconsistent and irreconcilable with each other. If either is silent where the other speaks, there is no conflict. Wright v. Richland County Sch. Dist. Two, 326 S.C. 271, 486 S.E.2d 740 (1997); Fine Liquors, supra.
Here, as provided in § 50-21-30(1),3 State statutes regulate only activity "on the waters of this State" and are silent regarding activities on the public beaches. Ordinance 5-11(c), which regulates activity on the public beaches, is not irreconcilable with these statutes and therefore is not inconsistent with the general law of this State.
The referee found Ordinance 5-11(c) inconsistent with article XIV, § 4, of our State Constitution which provides in pertinent part: All navigable waters shall forever remain public highways free to the citizens of the State and the United States without tax, impost or toll imposed ....
We disagree.
The effect of Ordinance 5-11(c) is to restrict the use of jet skis to approximately six hours per day during the summer months. Since jet skis cannot be operated on the waters of the State between sunset and sunrise under § 50-21-870(B)(2), application of City's ordinance results in allowing jet ski access only from sunrise until 9:00 a.m. and from 5:00 p.m. until sunset.4
Although the complete blockage of all use of navigable water is unconstitutional absent an overriding public interest, State ex rel. Medlock v. South Carolina Coastal Council, supra, the public's access to navigable water is subject to reasonable regulation. South Carolina Elec. & Gas Co. v. Hix, 306 S.C. 173, 410 S.E.2d 582 (Ct.App.1991). We have found no precedent requiring that a restriction on access to navigable water be the least restrictive means of regulating in order to pass muster as reasonable regulation. "Reasonable" in the context of other constitutional challenges has been defined simply as rationally related to a legitimate legislative purpose. See Anco, Inc. v. State Health and Human Services Fin. Comm'n, 300 S.C. 432, 388 S.E.2d 780 (1989)
(substantive due process); Jenkins v. Meares, 302 S.C. 142, 394 S.E.2d 317 (1990) (equal protection). Here, the restriction on jet skis is rationally related to the legitimate goal of public safety.
Further, in Captain Sandy's Tours, Inc. v. Georgetown County Bldg. Official, 310 S.C. 206, 423 S.E.2d 99 (1992), we upheld a county ordinance prohibiting the commercial use of public landings. The plaintiff, a commercial tour boat enterprise, claimed the ordinance violated its constitutional right of access to navigable water. We found article XIV, § 4, was not infringed where some access remained. Accordingly, we hold Ordinance 5-11(c) is not inconsistent with article XIV, § 4, because it is a reasonable restriction on public access to navigable water.5
The referee found that because Ordinance 5-11 allowed the launching and beaching of jet skis at the time Barnhill obtained his business license and began operating his rental business, he had a vested right to use the public beach for this purpose and enactment of subsection (c) constituted a regulatory taking. This ruling is erroneous. There is no private vested right in a particular use of government property. Captain Sandy's, supra (citing State Highway Dept. v. Carodale Assoc., 268 S.C. 556, 235 S.E.2d 127 (1977)
.)
The referee found Ordinance 5-11(c) violated equal protection because it was not enforced as to all motorized watercraft. A law fair on its face may be shown to violate equal protection if it is intentionally enforced discriminatorily. Butler v. Town of Edgefield, 328 S.C. 238, 493 S.E.2d 838 (1997). In this case, however, there is no evidence indicating discriminatory enforcement of the ordinance. Accordingly, on this record, we hold the referee erred finding an equal protection violation.
We hold the referee erred in finding Ordinance 5-11(c) invalid. The circuit court's order affirming this ruling is REVERSED. City's Argument IV is without merit and the circuit court's judgment on the issue is AFFIRMED under Rule 220(b), SCACR. See City of Abbeville v. Aiken Elec. Coop., Inc., 287 S.C. 361, 338 S.E.2d 831 (1985)
(); Berkeley Elec. Co-op., Inc. v. Town of Mt. Pleasant, 308 S.C. 205, 417 S.E.2d 579 (1992) ().
REVERSED IN PART; AFFIRMED IN PART.
1. Under § 5-7-140, the corporate limits of a municipality bordering the Atlantic Ocean include the area between the high-tide line and...
To continue reading
Request your trial
-
Sea Cabins v. City of North Myrtle Beach
...interest in conditioning issuance of a pier rebuilding permit to Sea Cabins on public access. See Barnhill v. City of North Myrtle Beach, 333 S.C. 482, 511 S.E.2d 361 (1999) (statute preempts municipal ordinance where there are inconsistent and irreconcilable conditions between the two). Ac......
-
Sc State Ports Authority v. Jasper County
...in S.C.Code Ann. §§ 54-3-130 and -150 manifest a legislative intent to occupy the field. The SCSPA, relying on Barnhill, 333 S.C. at 486-87, 511 S.E.2d at 363-64, asserts that the statutory purpose of acquiring property and developing ports within the State on the Savannah River makes manif......
-
Mibbs v. SOUTH CAROLINA DEPT. OF REVENUE
...cannot give rise to any vested property right and therefore can be the basis of no takings claim. See Barnhill v. City of North Myrtle Beach, 333 S.C. 482, 511 S.E.2d 361 (1999) (no taking where no vested right in 4. Again, any previous oral arrangement was unenforceable and bestows no righ......
-
Denene, Inc. v. City of Charleston
...on navigable waters where the statute specified any local laws must be identical to the state provisions. Barnhill v. City of North Myrtle Beach, 333 S.C. 482, 511 S.E.2d 361 (1999). 3. Section § 61-2-80 and its predecessor, § 61-5-190 (1990), are essentially the same except that the earlie......