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Andy focuses his practice on land use, state and local government, business litigation (banking, intellectual property, construction and real estate), business entity formation and governance.

Grounded is a special topic area focusing on land use rights and other issues. Written by Andy Gowder, you'll find insights into land use and other matters.


Local Motorcycle Helmet Ordinance Pre-empted by State law

The South Carolina Supreme Court recently decided in Aakjer v City of Myrtle Beach that the City of Myrtle Beach’s Helmet Ordinance, drafted in response to large motorcycle rallies in Myrtle Beach, was invalid because it was preempted by existing state statutes that already require motorcycle drivers to wear helmets and goggles or protective shields.
At issue was whether a local ordinance passed by the City of Myrtle Beach requiring motorcycle riders to wear a helmet and protective eye wear was enforceable and could serve as the basis of citations issued by Myrtle Beach police, to be adjudicated before Municipal Judges.  Petitioners, all of whom were cited for failing to wear helmets and eye protection in the City, filed a lawsuit in the original jurisdiction of the South Carolina Supreme Court to determine whether the Helmet Ordinance was preempted by state law and whether the City, by repealing parts of the more comprehensive Motorcycle Ordinance, also impliedly repealed the Helmet Ordinance portion.
In determining the validity of a local ordinance, the courts examine whether the local government has the power to enact an ordinance and if it does, whether the ordinance is consistent with the state’s constitution and with the statutes and common law of the state.  The Court also pointed out that an ordinance is preempted under “implied field preemption” when the state statutory scheme “so thoroughly and pervasively covers the subject as to occupy the field or when the subject requires statewide uniformity. “
The Supreme Court pointed out that in this case, a local ordinance specifying what protective gear is required to operate a motorcycle must necessarily be uniform statewide, because if it were otherwise, “riders would need to familiarize themselves with the various ordinances in advance of a trip, so as to ensure compliance.  Riders opting not to wear helmets or eye wear in other areas of the state would be obliged to carry the equipment with them if they intended to pass through a city with a Helmet Ordinance.”  These burdens would “unduly limit a citizen’s freedom of movement throughout this state.  Consequently, the Helmet Ordinance must fail under the doctrine of implied preemption.”
The Court also went on to point out that when the City repealed a section of the Motorcycle Ordinance that dealt with how violations of the Ordinance would be decided (eliminating the original administrative tribunal) the City had impliedly repealed the Helmet Ordinance and so, for that reason as well, the Ordinance was invalid.
Though South Carolina is a home rule state, there will continue to be circumstances, such as the Helmet Ordinance, in which the Supreme Court will determine that there is a need for statewide uniformity and invalidate local ordinances that conflict with state statutes passed in Columbia.  The Court must strike a continuing balance between the necessity of having central control and uniformity in some instances with the desirability of having local issues decided by local governments.

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