Judge: Local courts to consider smoking violations break law

COLUMBIA -- A memo from South Carolina's top judge said any courts created to consider violations of local ordinances like smoking bans are illegal under the state's Constitution, an edict that has some municipal officials wondering how they should deal with violators.

"The courts are purportedly established for the purpose of hearing smoking infractions, as well as various other local ordinance violations," Chief Justice Jean Toal wrote in the one-paragraph memo sent Monday to municipal administrators and judges throughout the state. "The creation of these courts is repugnant to the long-standing concept of the state uniform judicial system."

Instead, Toal wrote, infractions of local ordinances - like bans on smoking in public places - should be heard by magistrate and municipal courts, bodies she said are constitutional.

Smoking bans have sprung up across the state since last year, when Toal's court ruled that cities and towns have the power to ban indoor smoking in public places. Four South Carolina counties and 23 municipalities have passed smoking bans, and others are being debated, according to the South Carolina Tobacco Collaborative, an anti-smoking group.

Two months later, the justices perplexed some local officials in a unanimous ruling about smoking enforcement on Sullivan's Island, which in May 2006 became the first South Carolina town to pass a smoking ban. The court ruled the town can ban the practice inside public places but can't make violating the smoking ban a crime, and can't jail people who disobey.

"I'm not sure what we're supposed to do, and we're going to have to reconcile the chief justice's memo with that same court's previous ruling," Brad Cunningham, municipal attorney for Lexington, which passed a ban on public smoking last year, said Thursday. "I have no idea."

Cunningham isn't alone. Andy Benke, town administrator in Sullivan's Island, says attorneys there are reviewing the memo, and the state's municipal association says its members are already asking questions.

"We're going to try to talk through it and make sure our folks are in line with what needs to be done," says Warren Harley, governmental affairs liaison for the Municipal Association of South Carolina. "We want to make sure that whatever we do is right."

Not all of those areas have created separate systems to deal with infractions. Several municipalities with smoking bans, such as Hilton Head Island, say they've dealt with violations in municipal court, while others like North Augusta haven't had a single violation.

"The administrative hearing courts aren't solving any problem," says Will Cook, a professor of constitutional law at the Charleston School of Law. "They're creating more problems. ... I think it would be foolish for a local government to move forward with the existing system and go through needless litigation over the issue."

Cook is referring to Myrtle Beach, where the city is being sued over its administrative hearing court by the promoter of a motorcycle rally who says the city shouldn't be allowed to enforce a requirement that all riders wear helmets -- a requirement under city ordinance, but not state law.

On Thursday, City Manager Tom Leath said the Myrtle Beach City Council is still studying how best to comply with Toal's order.

For now, municipal leaders say they are going to work both with each other and the Supreme Court to determine how best to proceed with local ordinance violations.

"This was not on our radar," Harley says. "We're just confused at this point."