Foothills Brewing v. City of Greenville

• Decision Date: 31 March 2008
• Docket Number: No. 26467.,26467.
• Citation: 660 S.E.2d 264,377 S.C. 355
• Parties: The FOOTHILLS BREWING CONCERN, INC., 4MB, Inc., Greenville Wings, Inc., Addy's, Inc., City Tavern, Inc., Greenville 0036, LLC, Euphoria, LLC, WTK, Inc., Drumcliff Abbey, Inc., and Club Management, LLC, Respondents. v. The CITY OF GREENVILLE, Appellant.
• Court: South Carolina Supreme Court

660 S.E.2d 264

377 S.C. 355

The FOOTHILLS BREWING CONCERN, INC., 4MB, Inc., Greenville Wings, Inc., Addy's, Inc., City Tavern, Inc., Greenville 0036, LLC, Euphoria, LLC, WTK, Inc., Drumcliff Abbey, Inc., and Club Management, LLC, Respondents. v. The CITY OF GREENVILLE, Appellant.

No. 26467.

Supreme Court of South Carolina.

Heard January 9, 2008.

Decided March 31, 2008.

Rehearing Denied May 7, 2008.

Ronald W. McKinney, of Greenville, for appellant.

Randall Scott Hiller, of Greenville, for respondent.

Justice WALLER.

In this direct appeal, the trial court ruled that a municipal ordinance banning smoking in bars and restaurants is preempted by State law and violates the State Constitution. The City of Greenville (the City) appeals from the trial court's order. We reverse.

FACTS

In 1987, the City was the first municipality in South Carolina to pass an ordinance regulating smoking in public places. The 1987 ordinance applied to such areas as government-owned buildings, theaters, and office buildings. However, the 1987 ordinance exempted bars, and for restaurants, it authorized designated smoking areas.

In 1990, the Legislature enacted the Clean Indoor Air Act of 1990. See S.C.Code Ann. § 44-95-10 et seq. (2002). The Clean Indoor Air Act provides that it is "unlawful for a person to smoke or possess lighted smoking material in any form" in various public indoor areas such as: (1) public schools; (2) daycare centers; (3) health care facilities; (4) government buildings; (5) elevators; (6) public transportation vehicles; and (7) public performing art centers. See § 44-95-20.¹ A violation of the Clean Indoor Air Act constitutes a misdemeanor, and upon conviction, the violator "must be fined not less than ten dollars nor more than twenty-five dollars." § 44-95-50.

Because of the reported dangers of second-hand smoke, the City sought to more comprehensively regulate smoking in public places. Therefore, on October 30, 2006, the City enacted Ordinance No. 2006-91 (the Ordinance). In the "Findings and Determinations" section of the Ordinance, the City stated as follows:

Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing second hand smoke ... is a cause of disease in healthy nonsmokers, including heart disease, stroke, respiratory disease, and lung cancer....

The City recognizes that smoke creates a danger to the health and safety of the public at large and that, in order to protect the health and welfare of the public, it is necessary to restrict smoking in the manner provided for in this ordnance.

The Ordinance prohibits smoking in: (1) all enclosed public places, including bars and restaurants; (2) places of employment; and (3) certain outdoor areas, such as stadiums and zoos.

The section of the Ordinance governing violations and penalties states as follows, in pertinent part:

A. A person who smokes in an area where smoking is prohibited by the provisions of this Ordinance shall be guilty of an infraction, punishable by a fine....

B. A person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this Ordinance shall be guilty of an infraction, punishable by [a fine].

D. Violation of this Ordinance is hereby declared to be a public nuisance.

(Emphasis added).

Respondents all own and operate restaurants and/or bars in the City. In December 2006, respondents filed a declaratory judgment action contending the Ordinance was invalid and seeking injunctive relief. The trial court denied respondents' requests for a temporary restraining order and a preliminary injunction. The Ordinance went into effect at noon on January 1, 2007. On March 8, 2007, however, the trial court issued an order declaring the Ordinance was both unconstitutional and preempted by State law. Consequently, the trial court permanently enjoined the City from enforcing the Ordinance.

ISSUE

Did the trial court err in ruling that the Ordinance is preempted by State law and violates the South Carolina Constitution?

DISCUSSION

The City argues the Ordinance is not preempted by State law and is consistent with both the Constitution and the general law of the State. We agree.

A two-step process is used to determine whether a local ordinance is valid. Denene, Inc. v. City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002); Bugsy's v. City of Myrtle Beach, 340 S.C. 87, 93, 530 S.E.2d 890, 893 (2000). First, the Court must consider whether the municipality had the power to enact the ordinance. If the State has preempted a particular area of legislation, a municipality lacks power to regulate the field, and the ordinance is invalid. Id. If, however, the municipality had the power to enact the ordinance, the Court must then determine whether the ordinance is consistent with the Constitution and the general law of the State. Id.

To preempt an entire field, "an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way." Bugsy's, 340 S.C. at 94, 530 S.E.2d at 893 (citing Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990)). Furthermore, "for there to be a conflict between a state statute and a municipal ordinance `both must contain either express or implied conditions which are inconsistent or irreconcilable with each other.... If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand.'" Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. at 553, 397 S.E.2d at 664 (quoting McAbee v. Southern Rwy., Co., 166 S.C. 166, 169-70, 164 S.E. 444, 445 (1932)).

In the instant case, the trial court found that a 1996 legislative act — Act 445 — expressly preempts the Ordinance. We find no preemption.

Act 445 accomplished two separate objectives: (1) it amended section 44-95-20 of the Clean Indoor Air Act;² and (2) it amended and added statutes related to the distribution of tobacco products to minors. See S.C.Code Ann. §§ 16-17-500 thru 16-17-504 (2003).

Section 16-17-500 is a criminal statute which makes it a misdemeanor for anyone to sell or give a tobacco product to a minor. Section 3 of Act 445 amended this section by revising the penalties for the offense. Section 2 of Act 445 added sections 16-17-501, 16-17-502, 16-17-503, and 16-17-504 to the Code. Section 16-17-501 provides definitions relating to the distribution of tobacco products; section 16-17-502 makes it unlawful to distribute a tobacco sample to a minor; and section 16-17-503 provides for enforcement and federal reporting.

Section 16-17-504, entitled "Implementation; local laws," provides as follows:

(A) Sections 16-17-500, 16-17-502, and 16-17-503 must be implemented in an equitable and uniform manner throughout the State and enforced to ensure the eligibility for and receipt of federal funds or grants the State receives or may receive relating to the sections. Any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation. Nothing herein shall affect the right of any person having ownership or otherwise controlling private property to allow or prohibit the use of tobacco products on such property.

(B) Smoking ordinances in effect before the effective date of this act are exempt from the requirements of subsection (A).

§ 16-17-504 (emphasis added).

The trial court found that the second sentence of section 16-17-504(A) (emphasized above) applies not only to the statutory sections regarding the furnishing of tobacco to minors, but also applies to the Clean Indoor Air Act. The trial court therefore determined that this portion of section 16-17-504(A) expressly preempts local ordinances such as the Ordinance passed by the City in 2006. The trial court concluded that by "including the second sentence in section 16-17-504(A), the General Assembly intended to prohibit local government from imposing any restriction on indoor smoking beyond the restrictions contained in the Clean Indoor Air Act."

The City contends that the sections of Act 445 dealing with the distribution of tobacco products to minors were intended to address prerequisites set by the federal government in order to be eligible for certain grant funds. See, e.g., § 16-17-503 (specifically referencing compliance with the federal Public Health Service Act, 42 U.S.C. § 300x-26). Because of the limited focus and purpose of these statutes, the City argues the trial court erred by essentially exporting a portion of section 16-17-504 over to the Clean Indoor Air Act. We agree with the City.

The primary rule of statutory construction is to ascertain and effectuate the intent of the Legislature. E.g., Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). When construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect. Denene, 352 S.C. at 212, 574 S.E.2d at 198; TNS Mills, Inc. v. South Carolina Dep't of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998). Moreover, "[a] statute should not be construed by concentrating on an isolated phrase." South Carolina State Ports Auth. v. Jasper County, 368 S.C. 388, 398, 629 S.E.2d 624, 629 (2006). Finally, the Court must presume the Legislature did not intend a futile act, but rather intended its statutes to accomplish something. Denene, supra.

We find the trial court erred when it isolated a phrase from section 16-17-504 and interpreted it in such a way as to accomplish preemption under the Clean Indoor Air Act. See South Carolina State Ports Auth., supra (statute should not be construed by concentrating on an isolated phrase). While sections which are part of the same general statutory law must be construed together and each one given effect, see Denene, supra, this is easily accomplished by looking at the plain...