South Carolina Supreme Court
ROSALYN W. FRIERSON
1015 SUMTER STREET, SUITE 200
COLUMBIA, SOUTH CAROLINA 29201
TELEPHONE: (803) 734-1800
FAX: (803) 734-1355
TO: Magistrates and Municipal Judges
FROM: Robert L. McCurdy, Assistant Director
RE: Smoking Ordinance Violations
DATE: April 24, 2009
By memo dated March 23, 2009, Chief Justice Toal directed that smoking ordinance violations be heard in magistrate and municipal court. The purpose of this memorandum is to provide guidance in disposing of those cases. Justice Toal has reviewed and approved the process provided below.
- An ordinance must be in place restricting smoking within the entity.
- A violation must be written exclusively on a uniform ordinance summons. See §56-7-80. Uniform traffic tickets may not be used for these violations. An alleged violator must be served by a law enforcement or code enforcement officer and allowed to proceed. A custodial arrest is prohibited. CDR code 3382 has been assigned to these violations.
- The cases must be disposed in magistrate or municipal court. If your jurisdiction has a livability court, we would recommend that these cases be disposed in that court. Otherwise, they may be disposed in traffic court.
- Defendants must be afforded due process, which would include the right to contest the charge and the right to a jury trial upon proper request.
- Smoking ordinance violations are "civil infractions." Therefore, upon conviction, the defendant may be fined pursuant to the ordinance, but may not be incarcerated. Further, since these violations are civil in nature, no State mandated assessments apply1.
- A defendant may not be bench warranted for failure to appear or failure to pay a fine. For failure to pay or failure to appear cases, you may utilize the Set-Off Debt Process. Further, in failure to pay or appear cases, courts may issue an NRVC notice for a South Carolina licensed driver; however, a suspension of driver's license for a violation of smoking ordinances is not included as a penalty under State law and the SC Department of Motor Vehicles may choose not to process the NRVC.
A copy of Justice Toal’s March 23, 2009 memorandum is attached, as well as a copy of the Greenville decision referenced in the footnote. Should you have questions concerning this matter, please do not hesitate to contact this Office.
1 In City of Greenville v. Foothill Brewing, Op. No. 26467 (S.C. Sup. Ct. filed March 31, 2008), the Supreme Court upheld the City of Greenville smoking ordinance, which was termed a "civil infraction." Accordingly, State -mandated assessments required on criminal convictions would not apply to "civil infractions." The action of the Court upholding smoking ordinance violations as "civil infractions" was a narrow ruling. The Court was clear that the Constitution requires "statewide uniformity" regarding the criminal laws of this State. Therefore, local governments may not criminalize conduct that is legal under a statewide criminal law. Further, local governments are without authority to decriminalize an action which is criminal under State law and order to avoid State mandated assessments.