AGO 03-148.

Case Date:December 17, 2003
Court:South Carolina
 
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South Carolina Attorney General Opinions 2003. AGO 03-148. 609December 17, 2003 OPINION NO. 03-148Anthony R. Staten, ChiefSaluda Police Department 101 South Jefferson Street Saluda, South Carolina 29138 Dear Chief Staten: In a letter to this office you forwarded several proposed town ordinances which you indicate would be useful to clean up certain areas of your town heavily affected by drugs.
S.C. Code Ann. Section 5-7-30 (Supp. 2002) provides in part that
Each municipality of the State...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 ...law enforcement....
As indicated in a prior opinion of this office dated April 28, 1998,
Any municipal ordinance adopted pursuant to Section 5-7-30...is presumed to be valid....Within the limits of a municipality, an ordinance has the same local force as does a statute...Any ordinance must be demonstrated to be demonstrated to be unconstitutional beyond all reasonable doubt...(but)...the presumption of validity applies to legislation relating to a city or a town's police powers...
The first proposed ordinance referenced by you states:
It shall be unlawful for any person to willfully and knowingly fail or refuse to stop when signaled, hailed, or command to stop by a police officer in the lawful exercise of authority.
The April 28, 1998 opinion, a copy of which is enclosed, dealt with an almost identical ordinance concerning the refusal of an individual to stop when signaled by a law enforcement officers. Reference was made to S.C. Code Ann. Section 56-5-750 which makes it unlawful in this State to "fail to stop when signaled by a law enforcement vehicle by means of a siren or flashing light." The opinion indicated that the referenced ordinance would be complimentary to Section 56-5-750. 610The April, 1998 opinion also dealt with the question as to whether the particular ordinance would be consistent with requirements of the Fourth Amendment. Reference was made to the holding of the United State Supreme Court in Terry v. Ohio, 392 U.S. I (1968) which recognized that a police officer may, consistent with the Fourth Amendment, "'stop' and briefly detain a person where no probable cause is present where the officer has articulable and reasonable suspicion of the person's involvement in criminal activity." The opinion concluded that
...the proposed ordinance which makes it unlawful to willfully refuse to heed a police officer's command to stop is valid on its face. At the very least, it may be interpreted as a mechanism to enforce Terry v. Ohio...The proposed ordinance simply attempts to make it unlawful to fail to stop when ordered to do so by a police officer. Even if the command to stop is viewed as a "seizure" under the Fourth Amendment (and arguably it is not), a court would ultimately view a "stop" by an officer in light of the parameters of Terry. Thus, this aspect of the ordinance, which must be presumed valid, if enacted would be enforceable until a court concludes otherwise.
The next proposed ordinances deal with a curfew for minors. The first one states in part:
It shall be unlawful for any minor under the age of seventeen years to be present on foot or by vehicle on any public street, playground, park, public building, place of amusement or other public place between the hours of 11:00 p.m. and 6:00 a.m. of the following day; provided, however, this section shall not apply to a minor on an emergency errand, to a minor in the course of employment, or to a minor traveling home within thirty minutes from an organized school or religious activity. Each violation of this section shall constitute a separate offense.
611 Another proposed curfew ordinance states:
It shall be unlawful for any minor under the age of seventeen years to be present on any public street, playground, park, public building, place of amusement, or other public place during normal school hours; provided, however, this section shall not apply to a minor accompanied by a parent or other adult responsible for the minor; to a minor on an emergency errand; to a minor in the course of employment; or to a minor traveling within 30 minutes from school, or an organized school, religious, or civic activity. For the purpose of this ordinance, normal school hours shall be defined as the hours on Monday through Friday, from August through June that school in Saluda County is in session. Days that school is not in session are not included in the definition. Each violation of this section shall constitute a separate offense.
A prior opinion of this office dated March 3, 1994 dealt with the issue of the constitutional validity of ordinances mandating nighttime curfews for juveniles. The opinion, a copy of which is enclosed, examined the constitutionality of curfews from...

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