ORDERS:
ISSUE 3
The County alternatively asserts that, even if the $230,000.00 expenditure on the Sheriff’s
Department’s operations does not qualify as a tourism-related expenditure, it is nonetheless
permissible under § 6-4-10(4)(b). Petition at 2, ¶ 8. In pertinent part, this subsection permits a city
or county to expend accommodations tax revenues from the special fund created under § 6-4-10(4)(a) “to provide for additional county . . . services including . . . law enforcement.” See § 6-4-10(4)(b). A county’s right to do so, however, is subject to two conditions: first, the county must have
“a high concentration of tourism activity” (a term not defined in the statute) and second, a county
may not utilize these accommodations tax revenues “as an additional source of revenue to provide
services normally provided by the county . . .”. See Id. The TERC contends that the County does
not have a high concentration of tourism, that the law enforcement services at issue were not
additional services but services normally provided, and that the County is therefore not entitled to
make use of the accommodations tax revenues for Sheriff’s Department operations under § 6-4-10(4)(b). Answer at 3-4, ¶¶ 8 and 11.
The analysis of this issue starts with an examination of the definition of the phrase “high
concentration of tourism activity” adopted by the TERC and its application of that definition to the
facts of this case. As already noted, the legislature has not defined this phrase in §§ 6-4-5, et seq.
The TERC concluded that, for a county to satisfy the high concentration of tourism activity
requirement of § 6-4-10(4)(b), the County must demonstrate that in excess of $900,000 in annual
revenues from the accommodations tax authorized under § 12-36-2630(3) is collected in the “county
area.”
Petition at 2, ¶ 8; Answer at 3-4, ¶ 8. In reaching this conclusion, the TERC relied in part
upon South Carolina Department of Revenue Ruling 98-22 (which specifically adopts the $900,000
threshold for purposes of the “high concentration of tourism” requirement of § 6-4-10(4)(b)) and in
part upon the legislature’s adoption of that threshold as applying to expenditures of local
accommodations taxes for police services in S.C. Code Ann. § 6-1-530 (Revised 2004). Answer at
3, ¶ 8. The County alleges that the TERC erred “[a]s a matter of law” in adopting the $900,000
threshold for purposes of determining whether the $230,000 expenditure on Sheriff’s Department
operations could be justified under § 6-4-10(4)(b) and that the adoption of this threshold “is arbitrary
[because] it is not reflected within the body of the statute.” Petition at 2, ¶ 8. The Court disagrees.
As noted above, when a statute’s language is plain and unambiguous and conveys a clear and
definite meaning, there is no need to employ rules of construction. Tilley, supra. However, where
statutory terms are undefined, they are to be interpreted in accord with their usual and customary
meaning. See, Ex parte Adoptive Parents v. Biological Parents, 315 S.C. 535, ___, 446 S.E.2d 404,
409 (1994). In so doing, it is appropriate to consider legislation which deals with the same subject
matter. Id. It is also appropriate in such circumstances to resort to the construction of the statutory
term by executive branch agencies. Douglas v. Eastern Fire & Cas. Ins. Co., 245 S.C. 472, 141
S.E.2d 135 (1965). In exercising its power to review expenditures of accommodations tax revenues
under § 6-4-35(A), the TERC is permitted to interpret the statutes that it is charged with
administering to fill in details not included by the General Assembly. See South Carolina
Administrative Practice and Procedure, Randolph R. Lowell and Stephen P. Bates (S.C. Bar 2004)
at 15. Moreover, the construction given a statute by the executive branch entity charged with
administering same is entitled to the most respectful consideration and will not be overruled absent
compelling reasons. Brown v. Bi-Lo, 354 S.C. 436, 581 S.E.2d 836 (2003). In light of the foregoing
authority, the TERC’s interpretation of the phrase “high concentration of tourism activity” must be
upheld.
Although it deals with the use of local accommodations taxes imposed by counties pursuant
to § 6-1-520, § 6-1-530(B) only permits the use of tax revenues derived from the sale of
accommodations to fund police services in counties “in which at least nine hundred thousand dollars
in accommodations taxes is collected annually pursuant to Section 12-36-920.” In other words, a
county may not use the revenues of a local accommodations tax to fund police services unless the
annual state accommodations tax collections in that county exceed $900,000. It would be a curious
interpretation of the term “high concentration of tourism activity”, as used in § 6-4-10(4)(b), to allow
counties to utilize state accommodations tax revenues for law enforcement activity without regard
to the level of tourist activity as measured by state accommodations tax proceeds when the
legislature has restricted counties’ use of local accommodations tax revenues for police services
under § 6-1-530(B) to circumstances where the $900,000 threshold in state accommodations tax
revenues has been met. Contrary to the County’s contention otherwise, the TERC’s adoption of the
$900,000 in state accommodations tax as the threshold for a county to have a “high concentration
of tourism activity” is hardly arbitrary. Rather, it reflects a proper exercise of the TERC’s authority
to interpret an undefined statutory term by reference to legislation dealing with the same subject
matter. Ex parte Adoptive Parents, supra. The fact that the standard adopted by the TERC “is not
reflected in the body of the statute” (Petition at 2, ¶ 8) is simply no basis upon which to overrule the
TERC’s interpretation of the phrase – much less a compelling reason. Brown, supra. Moreover, the
Court notes that the County has failed to offer any alternative definition of the phrase “high
concentration of tourism activity.”
Similarly, the Court concludes that the TERC’s reliance upon South Carolina Department
of Revenue (“SCDOR”) Revenue Ruling 98-22 (Answer Exhibit “A”) as support for its adoption of
the $900,000 threshold needed for a county to satisfy the “high concentration of tourism activity”
requirement of § 6-4-10)4)(b) is well placed. At the time this ruling was issued, SCDOR served the
functions later devolved upon the TERC by the General Assembly. Cf. S.C. Code Ann. § 6-4-30(1998) and § 6-4-35 (Revised 2004). Thus, SCDOR was, essentially, the predecessor agency to
the TERC. Although administrative agencies are not generally bound by stare decisis, they may not
act arbitrarily in failing to follow established precedent. 330 Concord Street Neighborhood
Association v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (1992). In Revenue Ruling 98-22, SCDOR
interpreted the phrase “a county with a high concentration of tourism activity,” as used in § 6-4-10,
to mean a county in which accommodations tax revenues exceeded $900,000 annually. In so doing,
SCDOR examined the language of S.C. Code Ann. § 53-1-150(B), exempting from operation of the
Sunday “blue laws” any “county area, as defined in Section 6-4-5(1), which collects more than nine
hundred thousand dollars in one fiscal year in revenues from the accommodations tax provided for
in Section 12-36-2630(3) and imposed in Section 12-36-920(A).” In § 53-1-150(A), the legislature
found that exemptions from “blue laws” permitted a desirable shifting of tax burden from property
owners to tourists. Reasoning that the reference to § 6-4-5(1) in § 53-1-1-50(B) reflected legislative
recognition that collection of more than $900,000 in accommodations taxes would allow a county
to provide necessary governmental services, SCDOR concluded that these two provisions read
together justified adoption of the $900,000 threshold for purposes of implementing § 6-4-10(4). As
with other administrative agencies, the interpretation given taxing statutes by the entity charged with
their administration is entitled to the most respectful consideration and should not be overruled
absent cogent reasons. Glen Falls Ins. Co. v. City of Columbia, 242 S.C. 237, 130 S.E.2d 573
(1963). Here, the County has presented no justification for the TERC to vary from the interpretation
previously assigned by SCDOR to the term “high concentration of tourism” as contained in § 6-4-10(4)(b). Accordingly, the TERC’s adoption of that definition was proper and this Court declines
to overrule the TERC’s interpretation. 330 Concord Street Neighborhood Association, Brown, Glen
Falls, supra.
Because there was only $711,553.53 in state accommodations tax collected in the county area
for Florence County during fiscal year 2003 (See Stipulated Finding of Fact Number 5), the TERC
is correct that the County did not have a high concentration of tourism activity which would entitle
it to use state accommodations tax revenues for law enforcement services under § 6-4-10(4)(b).
ISSUE 4
The County contends that even if the $230,000 disbursement to the Sheriff’s Department was
non-compliant with the requirements of § 6-4-10(4) and § 6-4-25(B), such non-compliance should
be excused due to “mitigating factors” and because the statute is ambiguous. Petition at 2, ¶ 7, at
2-3 ¶ 10, and prayer for relief, ¶¶ b and c.
As already noted, no application for the $230,000 expenditure on the Sheriff’s Department
operations was submitted to the local advisory committee. The parties have stipulated that the
County’s Finance Director would testify that the local advisory committee informed the County that
successive applications by the Florence Civic Center for a disbursement of $230,000 in
accommodations tax revenues from the special fund created under § 6-4-10(4) were unnecessary in
light of the fact that the County’s Council had approved the first such application reviewed by the
local advisory committee. See Stipulated Finding of Fact Number 4 a-c.
The County asserts that
this is a mitigating factor that the TERC should have considered when making its determination that
the requirement of § 6-4-25(B) had not been met. Petition at 2, ¶ 7. Again, the Court disagrees.
Initially, the Court notes that the TERC is a creature of statute and therefore possesses only
the authority vested in it by the legislature. Bazzle, supra. Pursuant to § 6-4-35(B)(1)(a), if the
TERC determines that an expenditure of accommodations tax revenue is non-compliant with the
statute, it shall certify such non-compliance to the State Treasurer. The legislature’s use of the word
“shall” indicates that it intended that certification of non-compliance by a city or county be
mandatory upon the TERC. Collins v. Doe, 352 S.C. 462, 574 S.E. 2d 739 (2002). And, no
provision is made in the statute for the TERC to excuse or ignore non-compliance by a county or
municipality with respect to tourism-related expenditures in light of factors asserted to “mitigate”
such non-compliance. Were the TERC to do so, it would be exceeding its statutory authority and
such action would, thus, be null and void. Bazzle.
Moreover, even assuming that the local advisory committee had informed the County’s
Finance Director that no application for funding by the Sheriff’s Department was required to be
reviewed by the local advisory committee (cf. n. 7, supra) before such funding could be approved
by the County Council, that is in no way a mitigating factor. Every person is presumed to have
knowledge of the law. See LaBruce v. City of North Charleston, 268 S.C. 465, 234 S.E.2d 866
(1977). This includes governmental officials, who are presumed to have knowledge of the laws
pertaining to their specific area of authority. Cf. Gardner v. Blackwell, 167 S.C. 313, 166 S.E. 338
(1932) (holding that election officials are presumed to have knowledge of election laws). And, all
persons are deemed to have knowledge of a public official’s powers derived from statute and deal
with such official at their peril as to matters beyond the scope of such powers. American Sur. Co.
v. Hamrick Mills, 191 S.C. 362, 4 S.E.2d 308 (1939). Moreover, public officials into whose custody
the law entrusts public funds are without authority to make use of such funds in a manner contrary
to law. Kirk v. Clark, 191 S.C. 205, 4 S.E.2d 13 (1939). Thus, the County’s Finance Director is
charged with the knowledge that § 6-4-25(B) required that the local advisory committee review an
application for an expenditure of accommodations tax revenues from the special fund created under
§ 6-4-10(4) and the knowledge that the County Council lacked authority to approve such an
expenditure in the absence of a review by the local advisory committee. So, even assuming that the
Finance Director was advised by the local advisory committee that no application was required for
the proposed expenditure on Sheriff’s Department operations, he would have accepted that advice
at his own peril. In view of the foregoing authorities, the Court cannot agree that the County’s
failure to have an application by the Sheriff’s Department reviewed by the local advisory committee
would be mitigated by the Finance Director’s reliance upon the (alleged) advice of the local advisory
committee that no such application was required.
Further, the only ambiguity in the statute pertinent to the instant case results from the absence
of a definition of the phrase “high concentration of tourism” in § 6-4-10(4)(b). There is no
ambiguity with respect to the meaning of § 6-4-25(B) and its requirement that the Sheriff’s Office
application for funds from the accommodations tax revenues be reviewed by the local advisory
committee. The TERC correctly determined that no such application had been made to or reviewed
by the local advisory committee, so its finding of non-compliance must be upheld regardless of the
ambiguity in § 6-4-10(4)(b). Also, the County’s assertion in this regard suggests that the ambiguity
resulting from the absence of a definition of “high concentration of tourism” in § 6-4-10(4)(b) would
somehow justify the TERC in not applying, or excusing the County’s non-compliance with, this
limitation on the expenditure of accommodations tax revenues. Indeed, as the Court has already
noted, the cardinal rule of statutory construction is to ascertain and give effect to the legislative
intent. Wigfall v. Tidelands Utilities, supra. All other rules of statutory construction are subservient
to that rule. Id. If the existence of an ambiguity in a statute rendered it unenforceable, then the
cardinal rule could never be served. The Court declines to adopt the County’s apparent reasoning
in this regard.
ISSUE 5
The County finally contends that, even if the disbursement to the Sheriff’s Department was
non-compliant with the requirements of §§ 6-4-10(4)(b) and 6-4-25(B), the mitigating factors
referenced above justify a reduction in the amount of future accommodations tax revenues required
to be withheld from the County by the State Treasurer under § 6-4-35(B)(1)(a). The Court disagrees
with this last contention by the County for two reasons. First, in the Court’s discussion of Issue 4,
it has already been concluded that there are no mitigating factors at play in this case. Second, and
as has already been discussed, supra, administrative agencies possess only the powers devolved upon
them by the General Assembly. Bazzle. There is nothing in § 6-4-35(B)(1)(a) which authorizes the
TERC to certify to the State Treasurer as non-compliant an amount of expenditure less than that
which is determined to be non-compliant. To the contrary, the language of § 6-4-35(B)(1)(a) is
mandatory with respect to the TERC’s duty to certify non-compliant expenditures and the State
Treasurer’s duty to withhold the amount of such non-compliant expenditures from future
distributions of accommodations tax (“the committee . . . shall certify the noncompliance to the State
Treasurer, who shall withhold the amount of the expenditure found in noncompliance.”) See Collins
v. Doe, supra. Accordingly, there is no factual or legal basis upon which to reduce the amount of
expenditures certified by the TERC to the State Treasurer as non-compliant under § 6-4-35(B)(1)(a)
and the Court declines to do so.
CONCLUSION
Based upon the findings, conclusions and discussion set forth above, it is hereby
ORDERED:
(1)that the Petitioner’s request that the Court declare that the TERC has improperly
directed the State Treasurer’s Office to withhold $230,000.00 from subsequent distributions of
accommodations tax revenues to the County is denied;
(2)that the Petitioner’s request that the Court take into consideration mitigating factors
and reduce the amount of money the TERC has directed the State Treasurer’s Office to withhold
from subsequent distributions of accommodations tax revenues to the County is denied,
(3)and that this action is dismissed and all other relief sought by the Petitioner is denied.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
This 25th day of June, 2004
Columbia, South Carolina
ISSUE 3
The County alternatively asserts that, even if the $230,000.00 expenditure on the Sheriff’s
Department’s operations does not qualify as a tourism-related expenditure, it is nonetheless
permissible under § 6-4-10(4)(b). Petition at 2, ¶ 8. In pertinent part, this subsection permits a city
or county to expend accommodations tax revenues from the special fund created under § 6-4-10(4)(a) “to provide for additional county . . . services including . . . law enforcement.” See § 6-4-10(4)(b). A county’s right to do so, however, is subject to two conditions: first, the county must have
“a high concentration of tourism activity” (a term not defined in the statute) and second, a county
may not utilize these accommodations tax revenues “as an additional source of revenue to provide
services normally provided by the county . . .”. See Id. The TERC contends that the County does
not have a high concentration of tourism, that the law enforcement services at issue were not
additional services but services normally provided, and that the County is therefore not entitled to
make use of the accommodations tax revenues for Sheriff’s Department operations under § 6-4-10(4)(b). Answer at 3-4, ¶¶ 8 and 11.
The analysis of this issue starts with an examination of the definition of the phrase “high
concentration of tourism activity” adopted by the TERC and its application of that definition to the
facts of this case. As already noted, the legislature has not defined this phrase in §§ 6-4-5, et seq.
The TERC concluded that, for a county to satisfy the high concentration of tourism activity
requirement of § 6-4-10(4)(b), the County must demonstrate that in excess of $900,000 in annual
revenues from the accommodations tax authorized under § 12-36-2630(3) is collected in the “county
area.”
Petition at 2, ¶ 8; Answer at 3-4, ¶ 8. In reaching this conclusion, the TERC relied in part
upon South Carolina Department of Revenue Ruling 98-22 (which specifically adopts the $900,000
threshold for purposes of the “high concentration of tourism” requirement of § 6-4-10(4)(b)) and in
part upon the legislature’s adoption of that threshold as applying to expenditures of local
accommodations taxes for police services in S.C. Code Ann. § 6-1-530 (Revised 2004). Answer at
3, ¶ 8. The County alleges that the TERC erred “[a]s a matter of law” in adopting the $900,000
threshold for purposes of determining whether the $230,000 expenditure on Sheriff’s Department
operations could be justified under § 6-4-10(4)(b) and that the adoption of this threshold “is arbitrary
[because] it is not reflected within the body of the statute.” Petition at 2, ¶ 8. The Court disagrees.
As noted above, when a statute’s language is plain and unambiguous and conveys a clear and
definite meaning, there is no need to employ rules of construction. Tilley, supra. However, where
statutory terms are undefined, they are to be interpreted in accord with their usual and customary
meaning. See, Ex parte Adoptive Parents v. Biological Parents, 315 S.C. 535, ___, 446 S.E.2d 404,
409 (1994). In so doing, it is appropriate to consider legislation which deals with the same subject
matter. Id. It is also appropriate in such circumstances to resort to the construction of the statutory
term by executive branch agencies. Douglas v. Eastern Fire & Cas. Ins. Co., 245 S.C. 472, 141
S.E.2d 135 (1965). In exercising its power to review expenditures of accommodations tax revenues
under § 6-4-35(A), the TERC is permitted to interpret the statutes that it is charged with
administering to fill in details not included by the General Assembly. See South Carolina
Administrative Practice and Procedure, Randolph R. Lowell and Stephen P. Bates (S.C. Bar 2004)
at 15. Moreover, the construction given a statute by the executive branch entity charged with
administering same is entitled to the most respectful consideration and will not be overruled absent
compelling reasons. Brown v. Bi-Lo, 354 S.C. 436, 581 S.E.2d 836 (2003). In light of the foregoing
authority, the TERC’s interpretation of the phrase “high concentration of tourism activity” must be
upheld.
Although it deals with the use of local accommodations taxes imposed by counties pursuant
to § 6-1-520, § 6-1-530(B) only permits the use of tax revenues derived from the sale of
accommodations to fund police services in counties “in which at least nine hundred thousand dollars
in accommodations taxes is collected annually pursuant to Section 12-36-920.” In other words, a
county may not use the revenues of a local accommodations tax to fund police services unless the
annual state accommodations tax collections in that county exceed $900,000. It would be a curious
interpretation of the term “high concentration of tourism activity”, as used in § 6-4-10(4)(b), to allow
counties to utilize state accommodations tax revenues for law enforcement activity without regard
to the level of tourist activity as measured by state accommodations tax proceeds when the
legislature has restricted counties’ use of local accommodations tax revenues for police services
under § 6-1-530(B) to circumstances where the $900,000 threshold in state accommodations tax
revenues has been met. Contrary to the County’s contention otherwise, the TERC’s adoption of the
$900,000 in state accommodations tax as the threshold for a county to have a “high concentration
of tourism activity” is hardly arbitrary. Rather, it reflects a proper exercise of the TERC’s authority
to interpret an undefined statutory term by reference to legislation dealing with the same subject
matter. Ex parte Adoptive Parents, supra. The fact that the standard adopted by the TERC “is not
reflected in the body of the statute” (Petition at 2, ¶ 8) is simply no basis upon which to overrule the
TERC’s interpretation of the phrase – much less a compelling reason. Brown, supra. Moreover, the
Court notes that the County has failed to offer any alternative definition of the phrase “high
concentration of tourism activity.”
Similarly, the Court concludes that the TERC’s reliance upon South Carolina Department
of Revenue (“SCDOR”) Revenue Ruling 98-22 (Answer Exhibit “A”) as support for its adoption of
the $900,000 threshold needed for a county to satisfy the “high concentration of tourism activity”
requirement of § 6-4-10)4)(b) is well placed. At the time this ruling was issued, SCDOR served the
functions later devolved upon the TERC by the General Assembly. Cf. S.C. Code Ann. § 6-4-30(1998) and § 6-4-35 (Revised 2004). Thus, SCDOR was, essentially, the predecessor agency to
the TERC. Although administrative agencies are not generally bound by stare decisis, they may not
act arbitrarily in failing to follow established precedent. 330 Concord Street Neighborhood
Association v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (1992). In Revenue Ruling 98-22, SCDOR
interpreted the phrase “a county with a high concentration of tourism activity,” as used in § 6-4-10,
to mean a county in which accommodations tax revenues exceeded $900,000 annually. In so doing,
SCDOR examined the language of S.C. Code Ann. § 53-1-150(B), exempting from operation of the
Sunday “blue laws” any “county area, as defined in Section 6-4-5(1), which collects more than nine
hundred thousand dollars in one fiscal year in revenues from the accommodations tax provided for
in Section 12-36-2630(3) and imposed in Section 12-36-920(A).” In § 53-1-150(A), the legislature
found that exemptions from “blue laws” permitted a desirable shifting of tax burden from property
owners to tourists. Reasoning that the reference to § 6-4-5(1) in § 53-1-1-50(B) reflected legislative
recognition that collection of more than $900,000 in accommodations taxes would allow a county
to provide necessary governmental services, SCDOR concluded that these two provisions read
together justified adoption of the $900,000 threshold for purposes of implementing § 6-4-10(4). As
with other administrative agencies, the interpretation given taxing statutes by the entity charged with
their administration is entitled to the most respectful consideration and should not be overruled
absent cogent reasons. Glen Falls Ins. Co. v. City of Columbia, 242 S.C. 237, 130 S.E.2d 573
(1963). Here, the County has presented no justification for the TERC to vary from the interpretation
previously assigned by SCDOR to the term “high concentration of tourism” as contained in § 6-4-10(4)(b). Accordingly, the TERC’s adoption of that definition was proper and this Court declines
to overrule the TERC’s interpretation. 330 Concord Street Neighborhood Association, Brown, Glen
Falls, supra.
Because there was only $711,553.53 in state accommodations tax collected in the county area
for Florence County during fiscal year 2003 (See Stipulated Finding of Fact Number 5), the TERC
is correct that the County did not have a high concentration of tourism activity which would entitle
it to use state accommodations tax revenues for law enforcement services under § 6-4-10(4)(b).
ISSUE 4
The County contends that even if the $230,000 disbursement to the Sheriff’s Department was
non-compliant with the requirements of § 6-4-10(4) and § 6-4-25(B), such non-compliance should
be excused due to “mitigating factors” and because the statute is ambiguous. Petition at 2, ¶ 7, at
2-3 ¶ 10, and prayer for relief, ¶¶ b and c.
As already noted, no application for the $230,000 expenditure on the Sheriff’s Department
operations was submitted to the local advisory committee. The parties have stipulated that the
County’s Finance Director would testify that the local advisory committee informed the County that
successive applications by the Florence Civic Center for a disbursement of $230,000 in
accommodations tax revenues from the special fund created under § 6-4-10(4) were unnecessary in
light of the fact that the County’s Council had approved the first such application reviewed by the
local advisory committee. See Stipulated Finding of Fact Number 4 a-c.
The County asserts that
this is a mitigating factor that the TERC should have considered when making its determination that
the requirement of § 6-4-25(B) had not been met. Petition at 2, ¶ 7. Again, the Court disagrees.
Initially, the Court notes that the TERC is a creature of statute and therefore possesses only
the authority vested in it by the legislature. Bazzle, supra. Pursuant to § 6-4-35(B)(1)(a), if the
TERC determines that an expenditure of accommodations tax revenue is non-compliant with the
statute, it shall certify such non-compliance to the State Treasurer. The legislature’s use of the word
“shall” indicates that it intended that certification of non-compliance by a city or county be
mandatory upon the TERC. Collins v. Doe, 352 S.C. 462, 574 S.E. 2d 739 (2002). And, no
provision is made in the statute for the TERC to excuse or ignore non-compliance by a county or
municipality with respect to tourism-related expenditures in light of factors asserted to “mitigate”
such non-compliance. Were the TERC to do so, it would be exceeding its statutory authority and
such action would, thus, be null and void. Bazzle.
Moreover, even assuming that the local advisory committee had informed the County’s
Finance Director that no application for funding by the Sheriff’s Department was required to be
reviewed by the local advisory committee (cf. n. 7, supra) before such funding could be approved
by the County Council, that is in no way a mitigating factor. Every person is presumed to have
knowledge of the law. See LaBruce v. City of North Charleston, 268 S.C. 465, 234 S.E.2d 866
(1977). This includes governmental officials, who are presumed to have knowledge of the laws
pertaining to their specific area of authority. Cf. Gardner v. Blackwell, 167 S.C. 313, 166 S.E. 338
(1932) (holding that election officials are presumed to have knowledge of election laws). And, all
persons are deemed to have knowledge of a public official’s powers derived from statute and deal
with such official at their peril as to matters beyond the scope of such powers. American Sur. Co.
v. Hamrick Mills, 191 S.C. 362, 4 S.E.2d 308 (1939). Moreover, public officials into whose custody
the law entrusts public funds are without authority to make use of such funds in a manner contrary
to law. Kirk v. Clark, 191 S.C. 205, 4 S.E.2d 13 (1939). Thus, the County’s Finance Director is
charged with the knowledge that § 6-4-25(B) required that the local advisory committee review an
application for an expenditure of accommodations tax revenues from the special fund created under
§ 6-4-10(4) and the knowledge that the County Council lacked authority to approve such an
expenditure in the absence of a review by the local advisory committee. So, even assuming that the
Finance Director was advised by the local advisory committee that no application was required for
the proposed expenditure on Sheriff’s Department operations, he would have accepted that advice
at his own peril. In view of the foregoing authorities, the Court cannot agree that the County’s
failure to have an application by the Sheriff’s Department reviewed by the local advisory committee
would be mitigated by the Finance Director’s reliance upon the (alleged) advice of the local advisory
committee that no such application was required.
Further, the only ambiguity in the statute pertinent to the instant case results from the absence
of a definition of the phrase “high concentration of tourism” in § 6-4-10(4)(b). There is no
ambiguity with respect to the meaning of § 6-4-25(B) and its requirement that the Sheriff’s Office
application for funds from the accommodations tax revenues be reviewed by the local advisory
committee. The TERC correctly determined that no such application had been made to or reviewed
by the local advisory committee, so its finding of non-compliance must be upheld regardless of the
ambiguity in § 6-4-10(4)(b). Also, the County’s assertion in this regard suggests that the ambiguity
resulting from the absence of a definition of “high concentration of tourism” in § 6-4-10(4)(b) would
somehow justify the TERC in not applying, or excusing the County’s non-compliance with, this
limitation on the expenditure of accommodations tax revenues. Indeed, as the Court has already
noted, the cardinal rule of statutory construction is to ascertain and give effect to the legislative
intent. Wigfall v. Tidelands Utilities, supra. All other rules of statutory construction are subservient
to that rule. Id. If the existence of an ambiguity in a statute rendered it unenforceable, then the
cardinal rule could never be served. The Court declines to adopt the County’s apparent reasoning
in this regard.
ISSUE 5
The County finally contends that, even if the disbursement to the Sheriff’s Department was
non-compliant with the requirements of §§ 6-4-10(4)(b) and 6-4-25(B), the mitigating factors
referenced above justify a reduction in the amount of future accommodations tax revenues required
to be withheld from the County by the State Treasurer under § 6-4-35(B)(1)(a). The Court disagrees
with this last contention by the County for two reasons. First, in the Court’s discussion of Issue 4,
it has already been concluded that there are no mitigating factors at play in this case. Second, and
as has already been discussed, supra, administrative agencies possess only the powers devolved upon
them by the General Assembly. Bazzle. There is nothing in § 6-4-35(B)(1)(a) which authorizes the
TERC to certify to the State Treasurer as non-compliant an amount of expenditure less than that
which is determined to be non-compliant. To the contrary, the language of § 6-4-35(B)(1)(a) is
mandatory with respect to the TERC’s duty to certify non-compliant expenditures and the State
Treasurer’s duty to withhold the amount of such non-compliant expenditures from future
distributions of accommodations tax (“the committee . . . shall certify the noncompliance to the State
Treasurer, who shall withhold the amount of the expenditure found in noncompliance.”) See Collins
v. Doe, supra. Accordingly, there is no factual or legal basis upon which to reduce the amount of
expenditures certified by the TERC to the State Treasurer as non-compliant under § 6-4-35(B)(1)(a)
and the Court declines to do so.
CONCLUSION
Based upon the findings, conclusions and discussion set forth above, it is hereby
ORDERED:
(1) that the Petitioner’s request that the Court declare that the TERC has improperly
directed the State Treasurer’s Office to withhold $230,000.00 from subsequent distributions of
accommodations tax revenues to the County is denied;
(2) that the Petitioner’s request that the Court take into consideration mitigating factors
and reduce the amount of money the TERC has directed the State Treasurer’s Office to withhold
from subsequent distributions of accommodations tax revenues to the County is denied,
(3) and that this action is dismissed and all other relief sought by the Petitioner is denied.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
This 25th day of June, 2004
Columbia, South Carolina |
