|Case of the Month|
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.
On October 30, 2006, the City of Greenville adopted an ordinance regulating smoking in public places. Respondents filed a lawsuit in the circuit court in Greenville County challenging the ordinance as unconstitutional and in conflict with the general law of the state. The circuit court issued an order declaring the ordinance unconstitutional and in conflict with the general law of the state. The court also issued a permanent injunction against enforcement of the ordinance. The City of Greenville has now appealed that decision to the South Carolina Supreme Court.
The City concedes the ordinance has a broader scope of coverage that the Clean Indoor Air Act, S.C. Code Ann. § 44-95-10, et seq (2002), the general law in this state on the law of smoking. However, the City maintains its decision to extend the protection against the hazards of secondary smoke bears a rational relationship to the scope of the lawful objective to be achieved, including public convenience and necessity, public health and safety, and non-toxic workplaces. The City further argues there is no express or implied preemption in the Clean Indoor Air Act that prohibits local laws from adding to the Act in order to address health and convenience issues relating to inhaling secondary smoke exhaled by others. In sum, the City contends it is vested with the authority under the Home Rule Act to enact the ordinance, the ordinance is an exercise of municipal power affecting the health, safety and convenience of the public, the ordinance has a rational relationship to the legitimate end to be achieved, and the Clean Indoor Air Act does not preempt such further action by local governments on the subject matter.
The City also asserts the circuit court erred in relying on a provision of Act 445 of 1996, which, in part, amended the Clean Indoor Air Act, in finding the Clean Indoor Air Act precludes a municipal ordinance from prohibiting smoking and the use of lighted material to places not specifically itemized in the Clean Indoor Air Act. The City contends the circuit court should not have relied on a provision of Act 445 dealing with the transfer of tobacco products to minors because the provision had no effect on the Clean Indoor Air Act.
The City next argues the circuit court erred in failing to properly apply art. VIII, § 17 of the S.C. Constitution, which states that all laws concerning local government shall be liberally construed in their favor, and instead relying on S.C. Const. art. VIII, § 14, which deals with the setting aside of general law provisions.
Finally, the City maintains respondents failed to show by a preponderance of the evidence that the ordinance was unconstitutional, which it contends is the standard to be applied in such cases.
The South Carolina Supreme Court will hear oral argument in this case at 10:30 a.m. on Wednesday, January 9, 2008.
|Final Brief of Respondent|
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