On January 1, 2007, a Greenville County ordinance went into effect that banned smoking from a number of places, including restaurants and bars. A few bar and restaurant owners brought suit and a trial judge (The Hon. John Few) permanently enjoined the city from enforcing the ordinance. The trial court held that the ordinance was preempted by state law and that it violated the South Carolina Constitution. The trial court's order can be found here.
The South Carolina Supreme Court has now reversed. The court held that the ordinance was not preempted by state law and is not inconsistent with the Constitution of South Carolina. The trial judge had determined that the General Assembly intended to prohibit local government from imposing any restriction on indoor smoking beyond the restrictions contained in the Clean Indoor Air Act. The trial court focused on a portion of S.C. Code Ann. section 16-17-504 which stated that "any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation."
The state supreme court held that the trial court erred when it "isolated a phrase from section 16-17-504 and interpreted it in such a way as to accomplish preemption under the Clean Indoor Air Act." The supreme court further stated that “it is patent that the language regarding ‘ordinances’ found in section 16-17-504 is intended to relate specifically to the distribution of tobacco products" and not the regulation of indoor smoking.
The trial court had also found that the ordinance violated Article VIII, section 14 of the South Carolina Constitution. The trial court held that because a violation of the Clean Indoor Air Act constitutes a misdemeanor punishable by a fine, and the Greenville ordinance provides for a fine for smoking in areas not prohibited by state law, the city unconstitutionally criminalized a matter not illegal under the State of South Carolina’s criminal laws.
Article VIII deals with the creation of local government and limits the power of local government in certain areas. The supreme court construed the Greenville Smoking Ordinance as a non-criminal law. Accordingly, the provisions of Article VIII that prohibit a local government from setting aside the criminal laws of the state were not implicated. The supreme court observed that violation of the smoking ordinance constituted an infraction or a public nuisance and thus did not criminalize any conduct.
Accordingly, the court reversed the trial judge’s decision to enjoin the Greenville smoking ban.
While the public has followed this case, the decision does not change much about smoking in bars. Many bars learned that business actually increased because of the ban. Patrons could enjoy a brew and eats without smog.
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The fact remains that this continues to allow government and special interest groups the ability to tell a proprietor how he/she can run their personal business. I still contend that an employee or patron has a contitutional right to go work or patrronize another establishment. If the governments want to cease smoking and it's collateral consequences, why not make smoking illegal in this country. That's right, capital hill lobbyist would never allow that nor would the tobacco industry.
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