THE STATE OF
In The Supreme Court
Palmetto Princess, LLC, Respondent,
Edisto Beach, Appellant.
Howard P. King, Circuit Court Judge
Opinion No. 26157
Heard January 4, 2006 - Filed May 30, 2006
Marvin C. Jones and R. Clenten Campbell, both of Bogoslow, Jones, Stephens & Duffie, of Walterboro, for appellant.
Heath Preston Taylor, of Moore, Taylor & Thomas, P.A., of
West Columbia, for respondent.
JUSTICE MOORE: This is an appeal from a circuit court order granting respondent’s (Palmetto Princess’s) motion for summary judgment. We affirm.
On February 23, 2003, Palmetto Princess applied for a business license from appellant, the Town of Edisto Beach (
Edisto denied Palmetto Princess’s application. Edisto based its denial on the Town of
Palmetto Princess commenced a declaratory judgment action seeking to set aside Town of Edisto Beach Ordinance § 58-138 based partly on the grounds that: (1) Edisto did not have the power to enact the ordinance because the Johnson Act, 15 U.S.C.A. § 1171, et seq., restricts the prohibition of gaming activity to states or possessions of the United States; that is, that the Johnson Act preempts the local legislation embodied in the ordinance; and (2) § 58-138 violates article VIII, § 14, of the South Carolina Constitution. Both parties filed motions for summary judgment.
The circuit court held
Did the circuit court err by finding Town of
Edisto Beach Ordinance § 58-138 violates article VIII, §14, of the South Carolina Constitution?
Edisto argues the circuit court erred by finding its ordinance, § 58-138, violates article VIII, §14, of the South Carolina Constitution.
South Carolina Code Ann. § 5-7-30 (2004) provides: “Each municipality of the State . . . may enact . . . ordinances, not inconsistent with the Constitution and general law of this State, . . . for preserving health, peace, order, and good government in it . . . .” (Emphasis added).
As stated previously, Ordinance § 58-138 specifically prohibits the possession of a gambling device on a vessel within the waters of the municipal boundaries of
Because a gambling day cruise was a legal activity allowed by the State,
TOAL, C.J., PLEICONES, J. and Acting Justice Ralph King Anderson, Jr., concur. BURNETT, J., dissenting in a separate opinion.
BURNETT, J.: I respectfully dissent. In my opinion,
South Carolina Constitution Article VIII, § 14, provides: “In enacting provisions required or authorized by this article, general law provisions applicable to the following matters shall not be set aside: . . . (5) criminal laws and the penalties and sanctions for the transgression thereof . . . .”
When construing the Constitution, the Court applies rules similar to those relating to the construction of statutes.
As I explained in Diamonds v. Greenville County, 325 S.C. 154, 161, 480 S.E.2d 718, 721 (1997) (Burnett, J., dissenting):
Article VIII, § 14 does not require statewide uniformity of general law provisions regarding “criminal laws and the penalties and sanctions for the transgression thereof.” Instead, the preamble to Article VIII, § 14, provides “general law provisions applicable to the following matters shall not be set aside.” (emphasis added). The plain meaning of this provision requires local enactments “set aside” some existing provision of the general law before a constitutional violation occurs.
In my opinion, Article VIII, § 14 of the South Carolina Constitution does not prohibit local governments from criminalizing conduct which is not unlawful under state law. Until the Gambling Cruise Prohibition Act was enacted, there was no legislative action that made a gambling day cruise a legal activity. Further in Stardancer Casino, Inc. v. Stewart, 347 S.C. 377, 387-91, 556 S.E.2d 357, 362-64 (2001) (Burnett, J., dissenting), I would have held “boats located within South Carolina and its territorial waters are subject to the same laws concerning gambling as any other premises in this state.” I therefore disagree with the majority’s conclusion that gambling day cruises are lawful. Ordinance § 58-138 could not and did not set aside any statewide criminal laws.
The majority also relies on Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608 (1994) for the proposition that conduct which is not unlawful under state laws cannot be made unlawful by local enactment. In my opinion the
Edisto’s Ordinance § 58-138 does not set aside any criminal laws enacted by the state because the ordinance is not inconsistent with any state law. Therefore, I would hold
The circuit court’s ruling regarding preemption is not before the Court. However, for edification, the Johnson Act generally prohibits the use or possession of any gambling device on a
Subsequent to the circuit court’s order issued in this case, the General Assembly’s Gambling Cruise Prohibition Act was signed into law by the governor with an effective date of June 1, 2005. Section 3-11-200(A) of this Act specifically allows the type of ordinance enacted by