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24881 - Barnhill v. City of North Myrtle Beach

Davis Adv. Sh. No. 3
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

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.

Appeal From Horry County

David H. Maring, Sr., Judge

Opinion No. 24881

Heard October 21, 1998 - Filed January 18, 1999

REVERSED IN PART; AFFIRMED IN PART.

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.





MOORE, A.J.: Respondent Barnhill commenced this action

challenging in part appellant's (City's) ordinance restricting the launching

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BARNHILL v. CITY OF NORTH MYRTLE BEACH





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.





FACTS



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.





DISCUSSION



1. Police power



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 v. Fine Liquors,

Inc., 302 S.C. 550, 397 S.E.2d 662 (1990). The exercise of a municipality's

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BARNHILL v. CITY OF NORTH MYRTLE BEACH





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.





2. State statutes





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) (no person

may operate or be in possession of a personal watercraft while on the

waters of this State after sunset or before sunrise); see also § 50-21-820

(Supp. 1997) (waterskiing or similar activity not allowed between sunset

and sunrise); § 50-21-110 (Supp. 1997) (no person may use motorboat,

waterskis, or similar device negligently or while intoxicated).





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


1 Under § 5-7-140, the corporate limits of a municipality bordering the

Atlantic Ocean include the area between the high-tide line and one mile

seaward. This area is "subject to all the ordinances and regulations that may

be applicable to the areas lying within the corporate limits of the

municipality".





2 In order 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. Fine Liquors, 397 S.E.2d at 663. Section 50-21-30 provides in pertinent

part:



(1) The provisions of this chapter, and of other applicable laws

of this State shall govern the operating, equipment, numbering

and all other matters relating thereto whenever any vessel shall



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BARNHILL v. CITY OF NORTH MYRTLE BEACH





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.






be operated on the waters of this State or when any activity

regulated by this chapter shall take place thereon; but nothing in

this chapter shall be construed to prevent the adoption of any

ordinance or local law relating to operation and equipment of

vessels the provision so which are identical to the provision of

this chapter, amendments thereto, or regulations issued

thereunder; provided, that such ordinances or local laws shall be

operative only so long as and to the extent that they continue to

be identical to provisions of this chapter, amendments thereto, or

regulations issued thereunder.



(2) Any subdivision of this State may, at any time, but only after

three days' public notice make formal application to the

department for special rules and regulations with reference to the

operation of vessels on any waters within its territorial limits and

shall set forth therein the reasons which make such special rules

and regulations necessary or appropriate.



(3) The [Department of Natural Resources] is hereby authorized

to make special rules and regulations with reference to the

operation of vessels on waters within the territorial limits of this State.



(Emphasis added). The plain language of § 50-21-30 manifests a clear

legislative intent to preempt the entire field of regulation regarding the use

of watercraft on navigable waters. Any local regulation must in fact be

identical to State law unless authorized by the Department of Natural

Resources under subsection (2). Accordingly, the referee's ruling on

preemption is correct.

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BARNHILL v. CITY OF NORTH MYRTLE BEACH





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.





3. State Constitution





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);




3 See supra note 2.





4 Pleasure boating is a protected use of navigable water under article

XIV, §4. State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C.

445, 346 S.E.2d 716 (1986); State v. Columbia Water Power Co., 82 S.C. 181,

63 S.E. 884 (1909).

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BARNHILL v. CITY OF NORTH MYRTLE BEACH





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





4. Taking





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).





5. Equal protection







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.




5 The referee also found the ordinance violated the federal constitution's

protection of access to navigable water. Federal law applies to activity on

navigable water that affects interstate commerce. State ex rel. Medlock v.

Coastal Council, supra. There is no allegation that the ordinance in question

here infringes on interstate commerce.



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BARNHILL v. CITY OF NORTH MYRTLE BEACH





CONCLUSION







We hold the referee erred in finding Ordinance 5-11(c) invalid. The

circuit court's order affirming this ruling is REVERSED. City's remaining

argument is AFFIRMED under Rule 220(b), SCACR. See City of

Abbeville. v. Aiken Elec. Co-op., Inc., 287 S.C. 361, 338 S.E.2d 831 (1985)

(power to franchise is delegated only by statute); Berkeley Elec. Co-op.,

Inc. v. Town of Mt. Pleasant, 308 S.C. 205, 417 S.E.2d 579 (1992)

(franchise agreement that does not meet statutory requirements is illegal).





REVERSED IN PART; AFFIRMED IN PART.

FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.

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