STATEMENT OF ISSUES ON REPLY
I. WHETHER THE RESPONDENTS COMPLY WITH SOUND STATUTORY CONSTRUCTION WHEN THEY STRETCH A SINGLE SENTENCE IN S.C. CODE § 16-17-504 BEYOND THE SECTION’S LIMITED PURPOSE OF DEFINING ENFORCEMENT METHODS FOR PROHIBITING THE TRANSFER OF TOBACCO PRODUCTS TO MINORS.
II. WHETHER THE RESPONDENTS HAVE MET THEIR DUTY TO PROVE BEYOND A REASONABLE DOUBT THAT THE CITY OF GREENVILLE’S SMOKING ORDINANCE IS UNCONSTITUIONAL, WHEN THEY IMPLY NO SUCH DUTY EXISTS FOR THEM IN THIS CASE AND THEY MAKE NO EFFORT TO SHOW THE BURDEN BEING MET.
I. THE RESPONDENTS STRETCH THE MEANING OF S.C. CODE § 169-17-504 BEYOND THE ORIGNAL LEGISLATIVE INTENT IN ORDER TO OBTAIN A RESULT INCONSISTENT WITH THE SECTION’S LIMTED PURPOSE OF ENFORCEMENT METHODS FOR THE PROHIBITING THE TRANSFER OF TOBACCO PRODUCTS TO MINORS.
The Respondents argue, “The very language of S.C. Code Ann. § 16-17-504 expressly preempts any attempt by a local government such as the city to regulate indoor smoking.” (Respondents’ Brief, p. 7). Strangely, the Respondents’ Brief quotes no language from Section 16-17-504 that ever says “local governments cannot regulate indoor smoking.” The reason is that Section 16-17-504 contains no such express preemption.
SECTION 16-17-504. Implementation; local laws.
(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).
Section 16-17-504 is one of four new sections added by Act 445 of 1996 to Section 16-17-500, which prohibits the transfer of tobacco to minors, to complete the statutory framework on the topic.
The Respondents, in their brief, resort to taking the second sentence of Section 16-17-504 (A) and making a conclusory argument that it applies to indoor smoking. Yet, the sentence says only, “Any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation.” Although never expressly articulated in their brief, the Respondents appear to rationalize that smoking involves lighting, inhaling, and exhaling the smoke from cigarettes and other goods made primarily of tobacco. Therefore smoking ordinances are laws “pertaining to tobacco products,” and enacting such ordinances is the same as having them “supersede” state law or regulation. That contention is a self serving syllogism. As shown below, the theory is detached from sound empirical assessment of legislative intent and statutory purpose. Giving heed to it would undermine a decade and a half of Supreme Court opinions on the viability of local government decision making under the Home Rule Act. (See Appellant’s Brief).
Act 445 of 1996 addressed two topics: the first was the transfer of “tobacco products” to minors, and the second was the Clean Indoor Air Act. The General Assembly itself specified which provisions of Act 445 should be codified in the Clean Indoor Air Act, Chapter 95 of Title 44, “Health,” of the South Carolina Code and which provisions of the act should be codified in the statutory framework dealing with the transfer of tobacco products to minors, which are contained in Title 16, “Crimes and Offenses.” In doing so, the General Assembly acted in a way that reflects an intention to keep separate those statutory frameworks, which address distinct topics.
Nothing on the face of the Act 445 reflects a legislative intent to have provisions relating to the transfer of products to minors become entangled in the separate statutory framework of the Clean Indoor Air Act , which concerns the locations of where smoking is prohibited. Had the General Assembly wanted to impose mandates and restrictions on local governments in legislating on the topic of smoking venues, it certainly had the opportunity to do so when it passed Act 445. After all, the legislature it was addressing the Clean Indoor Air Act at the same time it was addressing the transfer of tobacco products. Yet, the General Assembly did not do so. Instead, the General Assembly demonstrated its intent by placing matters relating to specific provisions in each of the two statutory frameworks.
The statutory frameworks are different not only in purpose, but also in terminology. The Clean Indoor Air Act consistently uses the verb “smoke” and the noun “smoking material.” It never uses the phrase “tobacco product.” When Act 445 enacts definitions for words and phrases - including tobacco product – to be placed in Section 16-17-501, the act provides that the newly provided words and phrases are as used in Sections 16-17-501 through 16-17-504. There is no mention in Act 445 of applying those words and phrases to the Clean Indoor Air Act. The provisions related to “tobacco products” in Title 16 are transactional prohibitions; they are not use restrictions as provided for “smoking material” in Title 44.
Moreover, nothing in the City of Greenville’s Ordinance supersedes either the transferring tobacco products provisions of Title 16 or the using smoking material provisions of Title 44. According to BLACK’S LAW DICTIONARY, Seventh Edition, supersede means “to annul, make void, or repeal by taking the place of.” The Ordinance does nothing to annul, make void, or repeal the state law on transferring tobacco products to minors or the Clean Indoor Air Act. The Trial Court’s conclusions and the Respondents’ Brief treat types of preemption and superseding interchangeably, but the General Assembly has limited the scope of its directive in Section 16-17-504 to “supersedes.” If a local ordinance and state law can be enforced without one undermining the other, then there is no conflict. If there is no conflict, then clearly there is no “superseding;” rather the legislative enactments are acting simultaneously without one interfering with the other.
The respondents make much of the last sentence in Section 16-17-504, which says “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.” They insist that the sentence has no meaning unless it applies solely to the preceding sentence which Respondents argue must be “expansively read” to incorporate the Clean Indoor Air Act. (Respondents’ Brief, p. 12). If the truth be told, the sentence “must be expansively read” only if the purpose is to get to the result the Respondents want. In fact, the sentence on its face has a simpler meaning when it says “Nothing herein” affects the use of tobacco products on private property. The sentence is merely limiting the scope of Sections 16-17-500, Section 16-17-501, and Section 16-17-502, which are the sections to which Section 16-17-504 applies according to the lead sentence in the section. All that Section 16-17-504 is about is to state how those four sections that precede it are to be implemented. It says nothing about the Clean Indoor Air Act.
Subsection (B) of Section 16-17-504 states that existing smoking ordinances are exempt from the requirements of Subsection (A). The Respondents contend that the language of Subsection (B) is evidence that the General Assembly “recognized” existing smoking ordinances violated the requirements of Subsection A. “Any other interpretation renders S.C. Code Ann.§ 16-17-504(B) exemption to preexisting smoking ordinances completely superfluous and unnecessary.” (Respondents Brief, p. 10). That conclusory assertion treats the offense of transferring tobacco products to a minor as if it were a zoning ordinance authorizing a prior nonconforming use to continue. However, a state statute which systemically allows local exemption from a criminal statute having statewide effect contravenes the principal of special local legislation, set forth in Article III, Section 34 of the Constitution, and does not comply with the mandate of Article VIII, Section 14 that the law general law not be set aside. See discussion in Thompson v. South Carolina Commission on Alcohol and Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976). Thus, the Respondents’ interpretation leads to an unconstitutional result, and the Supreme Court consistently shuns such interpretations when others are possible. “If a constitutional construction of a statute is possible, that construction should be followed in lieu of an unconstitutional one.” Casey v. South Carolina State Housing Authority et al., 264 S.C. 303, 215 S.E.2d 184 (1975).
The same subsection can receive a constitutional construction by simply reading it in its context. “We should consider not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law.” Rorrer v. P.J. Club, Inc., 347 S.C. 560, 556 S.E.2d 726 (2001) citing S.C. Coastal Council v. S.C. State Ethics Comm’n, 306 S.C. 41, 44, 410 S.E.2d 245, 247 (1991). See also, Whitner v. State, 328 S.C. 1, 492 S.E.2d 77 (1997) and Spartanburg Sanitary Sewer District v. City of Spartanburg, 283 S.C. 67, 321 S.E.2d 258 (1984). The purpose of the transferring tobacco products to minors provisions is set forth on the face of the statutory provisions: The State needed to demonstrate a determination to intensify thoroughly its efforts to curtail the practice in order to qualify for full funding for substance abuse programs as required by 42 U.S.C. 300x-26. See, S.C. Code § 16-17-503. The federal requirement does not address assuring lenient smoking environments in bars and restaurants as a means of a state securing full funding for substance abuse programs. Section 16-17-503 instructed the Director of the Department of Revenue and Taxation to provide for enforcement in a manner that could reasonably be expected to reduce the selling and distributing of tobacco products to minors, including inspections and implementation of regulations implemented by the Department of Health and Human Services. Section 16-17-504 makes clear that the state methods were to be uniform but they were not intended to include smoking restrictions. Local smoking ordinances, depending on their provisions, may or may not touch upon the topic. Those in existence were protected and no reference is made as to future ones. At most, the language of Subsection B reflects certain flexibility in the implementation in its applicability to local government.
In case there were any ambiguity on the purpose of Act 445, turning to the substance and formatting of its title is enlightening as to legislative intent:
AN ACT TO AMEND SECTION 44-95-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PLACES IN WHICH SMOKING IS PROHIBITED UNDER THE CLEAN INDOOR AIR ACT OF 1990, SO AS TO REVISE THE AREAS IN WHICH A PERSON MAY SMOKE IN PUBLIC SCHOOLS AND PROVIDE THAT LOCAL SCHOOL BOARDS MAY MAKE SCHOOL DISTRICT FACILITIES SMOKE FREE; BY ADDING SECTIONS 16-17-501, 16-17-502, 16-17-503, AND 16-17-504 SO AS TO PROVIDE DEFINITIONS RELATING TO THE DISTRIBUTION OF TOBACCO PRODUCTS, TO MAKE IT UNLAWFUL TO DISTRIBUTE A TOBACCO SAMPLE TO A MINOR, TO PROVIDE A PROCEDURE TO ENFORCE THE PROVISION MAKING IT ILLEGAL TO DISTRIBUTE A TOBACCO PRODUCT SAMPLE TO A MINOR, TO AMEND SECTION 16-17-500, RELATING TO SUPPLYING MINORS WITH TOBACCO OR CIGARETTES, SO AS TO REVISE THE PENALTIES.
The title announced the two purposes of the act in a straight forward format. First, the title announced matters related to smoking on school campuses under the Clean Indoor Air Act. Those provisions are dealt with in Section 44-95-20. All references to matters regarding the Clean Indoor Air Act come before the single semicolon in the title. Second, four new sections were to be added to the regulation of the transfer of tobacco to minors and an existing section is amended. The additions were intended to provide definitions, to prohibit the distribution of samples, and to provide enforcement procedures. The amendment to the existing section was to revise penalties. The General Assembly groups all of these changes regarding the transfer of tobacco products to minors together after the semicolon in the title and places them in Sections 16-17-500 through 504. Nothing in the title announces a purpose of precluding local smoking ordinances, nor would such a measure be reasonable means of clamping down on the transfer of tobacco products to minors. The title of an act is relevant to the interpretation of its meaning: “…it is no novel principle to construe an act with reference to its title, and the body of the act taken in connection with the title manifests the legislative purpose,” Crouch v. Benet, 198 S.C. 185, 17 S.E.2d 320, at 191, 322 (1941) See also, Lindsay v. Southern Farm Bureau CASs. Ins. Co., 258 S.C. 272, 188 S.E.2d 374 (1972); and University of South Carolina v. Elliott, 248 S.C. 218, 149 S.E.2d 433 (1966).
II. THE RESPONDENTS CONJURE A NEW THEORY OF LAW WHICH IS UNSUPPORTED BY DECISIONS OF THE SUPREME COURT WHEN THEY REBUFF THEIR OBLIGATION TO PROVE BEYOND A REASONABLE DOUBT THAT THE CITY OF GREENVILLE’S ORDINANCE IS UNCONSTITUTIONAL.
In their brief the Respondents do not deny that the Supreme Court requires persons challenging legislative action as unconstitutional to bear a burden of proof beyond a reasonable doubt before they can succeed on the merits of the challenge. They insinuate that the duty arises only when the Due Process and Equal Protection Clauses are involved. The Respondents then assert that this dispute is distinguishable from such cases in that the inquiry is simply whether the City of Greenville had the power to adopt the ordinance. They say, “That power is for the Court and it either is or it isn’t, with no standard of proof applied thereto.” (Respondents’ Brief, p. 23).
Decisions of the Supreme Court do not treat the matter so dismissively and apply the burden of proof to situations other than those arising under the Due Process and Equal Protection Clauses. When the issue was whether a school board had the authority under the Constitution to issue debt, the Supreme Court said, “…before an Act of the Legislature may be declared unconstitutional, its invalidity must be shown beyond a reasonable doubt. In fact, it has been stated that to merely doubt the validity of a statute is to resolve the doubt in favor of its validity.” Conner v. Charleston High School District et al., 191 S.C. 412, 415, 4 S.E.2d 431, 433 (1939). In assessing whether a revision of the Probate Code violated the directive of Article III, Section 17 pertaining to the scope of the revising act to its title, the Supreme Court prefaced its discussion on the particular legal issue with the statement, “The law is well settled that the burden is on the person claiming the Act to be unconstitutional to prove and show that it is unconstitutional beyond a reasonable doubt.” (emphasis in original) McCollum v. Snipes et al., 213 S.C. 254, 49 S.E.2d 12, 14 (1948). At the time the Supreme Court considered whether vesting a particular state university with the power of eminent domain was a violation of Article III, Section 34 of the Constitution, which prohibits special legislation, the Court made several observations including,
…a statute will if possible, be construed so as to render it valid; that a legislative Act will not be declared unconstitutional unless its repugnance to the Constitution is clear and beyond a reasonable doubt; that every presumption will be made in favor of the constitutionality of a legislative enactment; that it will be declared unconstitutional only when its invalidity appears so clearly to have no room for reasonable doubt that it violates some provision of the Constitution…
University of South Carolina v. Mehlman, 245 S.C. 180,185, 139S.E.2d 771, 774 (1964). In implying that the burden of proof beyond a reasonable doubt is limited to instances of due process or equal protection, the Respondents’ Brief offers no citation to authority, nor could it do so for no case holding in this state makes that distinction.
To be clear, the fact that the legislative enactment is in this case a municipal ordinance rather than a state statute makes no difference. The Supreme Court has consistently treated both in the same manner in requiring proof beyond reasonable doubt. “It is well settled that ordinances, as with other legislative enactments, are presumed constitutional; their unconstitutionality must be proven beyond a reasonable doubt.” Rothschild v. Richland County Board of Adjustment, 309 S.C. 194, 198, 420 S.E. 2d 853, 856 (1992). See also, Peoples Program for Endangered Species v. Sexton, 323 S.C.326, 476 S.E.2d 477 (1996); Skyscraper Corp. v. County of Newberry, 323 S.C. 412, 475 S.E.2d 764 (1996); North Charleston Land Corp. v. City of North Charleston, 281 S.C. 470, 316 S.E.2d 137 (1984); Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955). Nor does it matter that there are no disputed facts here to be proven for the Supreme Court has said in regard to constitutional challenges, “…the burden of proof of both law and fact must be borne by him who charges violation of some provision of the Constitution…” (emphasis added). Caldwell v. McMillan, 224 S.C.150, 161, 77 S.E.2d 798, 803 (1953). Moreover, the Court has consistently invoked the maxim of proof beyond a reasonable doubt in cases when there were no disputed facts, and doing so would have no applicability were the maxim applicable to the proof of facts alone; See Conner v. Charleston High School District et al., supra; McCollum v. Snipes et al., supra; Peoples Program for Endangered Species v. Sexton, supra; Skyscraper Corp v. County of Newberry, supra.
The Respondents’ avoidance of the issue of their burden of proof in a constitutional challenge can not be accepted as an argument, when the principle of law is so fundamental to constitutional jurisprudence and so pervasive in Supreme Court opinions. The burden of proof on both law and fact is on persons challenging an ordinance as unconstitutional to show the invalidity beyond a reasonable doubt. The Respondents fail to acknowledge their burden, and they fail to meet it.
The Respondents’ assertion that S.C. Code § 16-17-504 “must be read expansively” is driven by a desire to reach a particular result. However, everything in the original enactment, Act 445 of 1996, indicates that the section and its provisions were to be separated from the Clean Indoor Air Act to which the Respondents argue it should apply. Moreover, the opening sentence of the section says it pertains to implementing Sections 16-17-500 through 16-17-503, all dealing only with transferring tobacco products to minors. Sound statutory construction says that a single sentence must be placed in the context of a statute’s purpose. The purpose of Section 16-17-504 is to set the parameters of enforcement of the prohibition of tobacco products to minors. Nothing on the face of Section 16-17-504 references the Clean Indoor Air Act and there is no reason to extend its provisions to that act or local ordinances regulating smoking. The Respondents bear the burden to show the City of Greenville’s Ordinance unconstitutionally supersedes state law by proof beyond a reasonable doubt. They treat that obligation dismissively and they fail to meet it.
September , 2007
Greenville, South Carolina