March 27, 2020
In response to the COVID-19 outbreak, many states have issued executive orders requiring citizens to stay home and shuttering non-essential businesses. (Check out Nelson Mullins’ prior coverage of these orders here.) While roughly 25 states have issued so-called Stay Home Stay Safe or Shelter-in-Place orders, governors from many states have refused to issue such an order, citing the lack of medical necessity and the potential harm to their state’s economy. Governor McMaster has repeatedly said that “all options are on the table” to respond to the COVID-19 outbreak, but he has not yet issued a statewide order closing all non-essential businesses and requiring citizens to remain inside.
In the absence of a statewide order, at least three South Carolina cities have issued orders: Charleston, Myrtle Beach, and Columbia. While they are slightly different, the basic premise is that a public health emergency exists, so non-essential businesses must close and non-essential public activities must cease. So what do these orders mean for you and your business? They likely mean you need to close unless you are an essential business. However, an opinion from the South Carolina Attorney General today questions whether these cities have the authority to issue local emergency ordinances.
An Overview of the Cities’ Orders
The City of Charleston was the first to issue their “Emergency Ordinance on Stay at Home” on Tuesday, March 24, 2020. The order requires citizens to stay in their homes unless they are “working at or conducting business with” certain “essential businesses” established in an attachment to the order. Though it is not referenced in the order, the City Council explained that the list of essential businesses was modeled after guidance provided by the Director of the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency in a March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response (the “CISA Memo”). The order determined that requiring citizens within the city limits to stay home was necessary “to protect, preserve, and promote the general health, safety, and welfare and the peace and order of the community . . . .” The order is already in effect.
The City of Myrtle Beach followed suit on Thursday, March 26, 2020, passing its “Resolution to Direct the City Manager to Implement the Attached Emergency Health and Safety Order.” Its order is more narrow than the Charleston Order and is aimed at the tourism industry. The order closes golf courses, theatres, and amusement parks. It also closes all “accommodation businesses,” including hotels and Airbnb-style lodging, even going so far as to cancel reservations from March 28–April 30th. The order also requires any “visitors” not meeting the mandates of the order to “vacate” the accommodation by Sunday March 29th. This order is also already in effect.
Later that same day, the City of Columbia issued its Emergency Order Declaring a Stay Home Stay Safe for the City of Columbia. The order is more detailed than the Charleston and Myrtle Beach orders and requires individuals to “stay in their homes and not travel through . . . the City of Columbia . . . except for the purpose of working at or conducting business with the attached list of” essential businesses. The order goes into effect at 12:01 a.m. on Sunday, March 29, 2020.
While each of the orders differ slightly in their explanation of the reasons for issuing the order, the orders give little explanation about the law or constitutional provisions authorizing the local government to issue the orders.
The Attorney General Opinion
The day after Myrtle Beach and Columbia issued their emergency orders, the South Carolina Attorney General called into question the validity of the local orders. South Carolina State Representative Jeff Bradley (R-Beaufort) requested an expedited opinion from the Attorney General under S.C. Code Ann. §§ 1-7-90 and 1-7-110, state laws which permit government officials to request the State’s “chief law officer” issue a legal opinion on a particular legal issue.
Relying on an opinion his office issued in 1980, the South Carolina Attorney General opined that State law provides only the Governor with emergency powers during a declared state of emergency. The Attorney General explained that while local governments maintain authority under declared emergencies to enact ordinances under Home Rule, “they do not have extraordinary emergency powers. They cannot exercise the emergency powers delegated to the Governor by the General Assembly.” The Attorney General concludes that these emergency powers under South Carolina law “are exclusive and may be exercised only by the” Governor.
What This Means For Your Business
The competing ordinances and Attorney General opinion generate confusion for business owners. On the one hand, the local government has told you not to operate your business unless it is essential. On the other, the State’s “Chief Law Officer” has told you that the local government did not have the authority to shut down your business in the first place. So what do you do?
You should be careful not to ignore the local ordinances. The South Carolina Attorney General’s opinion that the local emergency orders are invalid is “persuasive authority,” but is not binding authority in the South Carolina court system. The South Carolina Supreme Court can, and has on occasion, rejected or discounted the Attorney General’s opinions in the past. Thus, businesses may ignore the local emergency orders at their own peril. This is especially true because the South Carolina Attorney General often reminds state officials requesting opinions that, local laws, like State laws, are entitled to a presumption of constitutionality; while the Attorney General “may comment upon constitutional problems, only a court may declare an ordinance void as in conflict with the Constitution.” The ordinance or law at issue “must continue to be followed until a court declares it to be unconstitutional.”
The City of Columbia's Mayor was likely referencing this principle on Twitter earlier today, when he tweeted:
In the interest of public health & saving lives, the Stay Home Stay Safe Emergency Order for the @CityofColumbia . . . will be enforced effective 12:01 AM Sunday. The opinion of the AG does not have the force of law. Please call 803.545.3300 with questions
The City of Charleston issued a press release shortly after the Attorney General’s opinion echoing the sentiment of Columbia Mayor Steve Benjamin:
The city appreciates the strong support for the principle of Home Rule voiced in today’s AG Office’s opinion, and believes that principle extends to emergency ordinances to protect the health and safety of our citizens. In addition, city leaders and staff have worked diligently to ensure that our current emergency ordinances directly support and codify the orders issued by Governor McMaster during this crisis.
The Charleston Order makes it “unlawful for a person to willfully fail or refuse to comply with any lawful order or direction of [local government officials] issued pursuant to” the City’s Order. Likewise, Columbia’s Order makes the failure to comply a misdemeanor punishable under Columbia City Code § 1-5, with each day the business or person is in violation being a separate offense. Depending on the authority under which the violation occurs and is charged, a business staying open despite the local emergency orders could face fines between $100 and $500 per day, or even imprisonment of the business owner or manager up to 30 days.
Until a court issues an opinion declaring the local emergency ordinances to be invalid—or until the Governor issues his own executive order regarding closures of non-essential business—a conservative approach for you as a business owner may be to comply with the closure requirements of the local ordinances unless your business falls into one of the categories of essential businesses.
How Nelson Mullins Can Help
Business owners can be proactive by engaging Nelson Mullins to evaluate the goods or services your business provides to determine whether the local ordinances even apply to your business. If your business is an essential business under the local ordinances, then you likely do not need to close regardless of the disagreement between the Attorney General and the local governments, so long as you maintain social distancing, take other steps to follow guidance from the Centers for Disease Control and Prevention, and otherwise comply with the local ordinances. Should you decide to keep your business open and are contacted by local authorities directing you to shut down, Nelson Mullins is available to help navigate through the issues arising from those directives.
If you have any questions or would like assistance in navigating your business’s response to COVID-19 orders, please contact Matt Abee or Debbie Durban. Additional resources about COVID-19 are available at https://www.nelsonmullins.com/coronavirus-resources.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship Internet subscribers and online readers should not act upon this information without seeking professional counsel.
 Some authority does exist for local governments to issue emergency ordinances. See, e.g., S.C. Code Ann. § 5-7-250(d) (“To meet public emergencies affecting life, health, safety or the property of the people, council may adopt emergency ordinances”).
 See State ex rel. Condon v. Hodges, 349 S.C. 232, 239, 562 S.E.2d 623, 627 (2002).
 S.C. Att’y Gen. Op. 80-93, 1980 WL 81975 (Sept. 5, 1980).
 Home Rule refers to the “means to determine how power is allocated between the General Assembly and local governments.” Cty. of Florence v. W. Florence Fire Dist., 422 S.C. 316, 321–22, 811 S.E.2d 770, 773 (2018). “In 1973, Article VIII of the South Carolina Constitution was completely revised for the purpose of accomplishing home rule; thus granting renewed autonomy to local government.” S. Bell Tel. & Tel. Co. v. City of Aiken, 279 S.C. 269, 271, 306 S.E.2d 220, 221 (1983).
 State v. Ramsey, 409 S.C. 206, 212, 762 S.E.2d 15, 18 (2014)
 2001 WL 957755, at *1 (S.C.A.G. Aug. 15, 2001).
 2019 WL 946264, at *1 (S.C.A.G. Jan. 14, 2019).
 Charleston City Ord. 1-16(a); Columbia City Code § 1-5; S.C. Code Ann. § 16-7-10.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.