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STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
Appeal From Florence County
Honorable B Hicks Harwell, Jr.,
Circuit Court Judge
THE STATE,
Respondent, vs.
RONALD P. WHITE,
Appellant.
FINAL BRIEF OF RESPONDENT
CHARLES M. CONDON
Attorney General
JOHN W. McINTOSH
Chief Deputy Attorney General
CHARLES H. RICHARDSON
Assistant Deputy Attorney General
Post Office Box 11549 Columbia, SC 29211 (803) 734‑3727
E.L. CLEMENTS, III
Solicitor, Twelfth Judicial Circuit
City‑County Complex 180 N. Irby St., MSC‑Q Florence,
SC 29501 (843) 665‑3091
ATTORNEYS FOR RESPONDENT
TABLE OF CONTENTS
TABLE
OF AUTHORITIES ............................. ii
STATEMENT
OF ISSUE ON APPEAL ........ ...............................1
STATEMENT
OF THE CASE ......................... 2
ARGUMENT
The trial judge properly found that
S.C. Code Alm. § 16‑17‑700 (Supp. 2000) in prohibiting the act of
tattooing does not violate the First Amendment or Article 1, Section 2 of the
State Constitution and properly refused to quash Appellant's indictment…….3
CONCLUSION......................................................9
i
TABLE OF AUTHORITIES
Cases:
Darlington
v. Startle 139 S.C. 139, 122 S.E.2d 207 (1961) ................ ........................... 7
Golden
v. McCarty, 337 So.2d 388 (Fla. 1976) ................................................................ 6
Grossman
v. Baumgartner 218 N.E.2d 259 (N.Y. 1966) .................... ........................... 6
In
re Antonio C., 100 Cal. Rptr. 2d 218 (Cal. Ct. App. 2000) ............ ........................... 3
People
v. O'Sullivan, 409 N.Y.S.2d 332 (N.Y. 1978) . ........................ ........................... 5,7
State
V. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997) ................................................... 4
State
v. Brady, 492 N.E.2d 34 (Ind. 1986) ..................................................... 5
State
v. Jones, 344 S.C. 48, 543 S.E.2d 541 (2001) ..................................... 4
State
v. ‑Moultrie, 273 S.C. 532, 257 S.E.2d 730 (1979) ....8
Stephenson
v. Davenport Community School District, 110 F.3d 1303 (8th Cir. 1997) ..... 3
Younger
v. Harris, 401 U.S. 37, 5 1 (197 1) ..................................................................... 7
Yurkew
v. Sinclair, 495 F.Supp. 1248 (D. Minn. 1980)................................ 5,6
Other Authorities:
Article
1, § 2, South Carolina Constitution ..................................... 3,7
Indiana
Code Section 25‑22.5‑1‑1.1 .....5
S.C.
Code Ann. § 16‑17‑700 (Supp. 2000) .....3
ii
STATEMENT OF ISSUE ON APPEAL
Did the trial judge property find that S.C. Code Ann. § 16‑17‑700
(Supp. 2000) in prohibiting the act of tattooing does not violate the First
Amendment or Article 1, Section 2 of the State Constitution and property refuse
to quash Appellant's indictment? (Appellant's issues I and II).
1
STATEMENT OF THE CASE
Appellant was indicted by the grand jury for the Court of
General Sessions for Florence County for violating S.C. Code Ann. § 16‑17‑700
(Supp. 2000). His case came to trial before the Honorable B. Hicks Harwell,
presiding Judge.
At the conclusion of the trial, Appellant was found guilty
as charged. Judge Harwell thereafter sentenced Appellant to a term of
imprisonment of one year and a fine of two thousand five hundred dollars,
suspended to five years probation and a five hundred dollar fine.
This appeal follows.
2
ARGUMENT
The trial judge properly found that S.C. Code Ann. §
16‑17‑700 (Supp. 2000) in prohibiting the act of tattooing does pot
violate the First Amendment or Article 1, Section 2 of the State Constitution
and property refused to quash Appellant's indictment.
Appellant was ‑indicted for
violating S.C. Code Ann. § 16‑17‑700 (Supp. 2000). (R.
p. 78). That statute prohibits the act of tattooing unless performed by a
licensed physician or surgeon when necessary for cosmetic or reconstructive
purposes. Prior to his trial, Appellant moved
to quash his 'indictment on the grounds that § 16‑17‑700 "in
prohibiting him from the act of tattooing In this state is unconstitutional.
(R. p. 3. lines 12‑24). In his brief, he particularly alleges that such
provision is violative of his right of freedom of speech and expression as an
artist pursuant to the First Amendment and Article I, § 2 of the State
Constitution.
Appellant testified that he had been a tattoo artist for
over ten years. Re was arrested following his appearance on a Florence
television station in which he was shown tattooing an individual He admitted he
knew that his actions were illegal. (R. p. 16, line 1 - p. 41, line 3).
In his cross‑examination Appellant admitted there
were risks associated with tattoos. (R. p. 27, line 20). He further conceded
that without regulation, the act of tattooing could be 'inherently dangerous
with a risk to public health. (R. p. 33, line 25 ‑ p. 34, line 6; p. 39,
lines 17‑21). Presently, aside from the statute, there are no regulations
of the practice of tattooing. (R. p. 38, line 21 ‑ P'. 39, line 3; p. 66,
lines 15‑17). (R. p. 15, line 23 ‑ p. 41, line 13; p. 7 1, tine 7 ‑
p. 75, tine 13). The trial Judge denied the motion to quash. (R. p. 62, line 22
‑ p. 70, line 16).
Of course, when the issue is the constitutionallty of a
statute, every presumption is made in favor of the statute's validity and no
statute will be declared unconstitutional unless its invalidity is so clear as
to leave no doubt that it conflicts with the constitution. State v. Bony ,
325 S.C. 260, 484 S.E.2d 46 1 (1997); State v. Jones, 344 S.C. 48, 543
SE2d 541 (2001) Moreover. Appellant has the burden of proving the statute
unconstitutional. Id.
Appellant in alleging that the act or process of tattooing
is constitutionally protected speech compares such to protected forms of
expression or entertainment. He further asserts that the act of tattooing is
not distinguishable from the display of tattoos for purposes of the First
Amendment.
4
In State v. Brady,
the Indiana court of appeals considered the question as to whether enforcement
of a statutory prohibition preventing tattooing by an individual not licensed
to practice medicine infringes on that individual's First Amendment rights.
The
court determined that the statute
was not violative of the First Amendment in circumstances where tattooing was
done for artistic purposes. In its decision, the court noted
that it had been determined by other
Jurisdictions that the process of
tattooing was "neither speech
nor even symbolic speech." See: Yurkew v. Sinclair,
495 F.Supp. 1248 (D.Minn. 1980); ‑People
v. O'Sullivan, 409 N.Y.S.2d 332 (N.Y. 1978).
Having determined that tattooing 'implicated no First
Amendment rights, the court in Brady considered further whether there
was a rational basis for the legislature including tattooing within the
definition of the practice of medicine. The court, noting the existence of
"a very real risk of infection or transmission of communicable
diseases" by tattooing, concluded that the
statutory prohibition was neither arbitrary or capricious. The court recognized
the police power of the state to regulate iii the area particularly finding
that "...the legislature intended to restrict the performance of certain
procedures, which entail risk of infection or communication of disease, to
those best trained to prevent such from occurring." 492 N.E.2d at 38‑39.
5
Similarly, in Golden v. McCarty
and Grossman v. Baurrigartner, the Florida and
New York courts, recognizing that the constitutional right to engage in a
profession or occupation is subject to the police power of the state,
determined that the nature of tattooing bore a substantial relationship to
public health. Those courts concluded that the regulation of such activity was
a lawful exercise of the state's police power with regard to public health. In
Florida, there was a restriction on tattooing to those licensed to practice
medicine or dentistry or to those under their direction. In New York, there was
a similar restriction prohibiting tattooing except by a physician.
In Yurkew, supra, the district court dealt with a
challenge to the Minnesota State Fair Board's refusal to rent a tattoo artist space
for commercial tattooing at the fairgrounds. The individual contended that a
tattoo is an art form and the process of tattooing 'involved artistic
expression. The question was raised as to whether the act of tattooing involved
First Amendment activity. The court concluded that
... the actual process of tattooing is not sufficiently
communicative in nature so as to rise to the plateau of important activity
encompassed by the First Amendment ... Wherever the amorphous line of
demarcation exists between protected and unprotected conduct for First
Amendment purposes, the Court is convinced that tattooing falls on the
unprotected side of the line ... (M)erely because ... (the defendant)...
intends to express an idea through the tattooing process does not raise the
conduct to a level protected by the First Amendment.
495 F.Supp. at 1253‑1254. The court declined to
resolve the issue of whether an actual tattoo is an art form.
6
The court noted further that inasmuch as there was no
'involvement of
any First Amendment right, the action of the board should be
upheld if there was a
rational basis for that decision.
The court concluded that the denial of permission for
tattooing at the fair was rationally
related to the protection and preservation of the
public's health, safety and welfare.
In People v. O'Sullivan, supra, the
court similarly determined that
the act of, tattooing was neither
speech nor symbolic speech. Regardless, the court
found that "even pure speech
was may be subject to reasonable regulation in the
public interest." 409 N.Y.S.2d
at 333. It was determined by the United States Supreme
Court in Younger v. Harris,
that
Where a statute does not directly abridge free speech,
but ‑‑ while regulating a subject within the State's power‑‑
tends to have the incidental effect of inhibiting First Amendment rights, it is
well settled that the statute can be upheld 'if the effect on speech is minor
in relation to the need for control of the conduct and the lack of alternative
means for doing so.
In the 'instant case, there was no direct or incidental
abridgment of any of Appellant's First Amendment rights. Therefore, the
legislature's authority to prohibit the act of tattooing is even more
persuasive. The lower court properly determined that there was no First
Amendment violation by the state statute which prohibits Appellant from
tattooing in this state. Similarly. there was no violation of Article 1, § 2 of
the State Constitution. Darlington v. Stanley, 239 S.C. 139, 122 S.E.2d
207 (1961). The lower court having found that there was no violation of free
speech, correctly determined that such statute has a rational basis,
7
particularly determining the enactment of the statute to
have been a lawful exercise by the legislature of the police power with regard
to public health. Having upheld the constitutionality of the statute, the trial
judge properly refused to quash the indictment. State v. Moultrie, 273
S.C. 532, 257 S.E.2d 730 (1979). (R. p. 62, line 22 ‑ p. 70, line 16).
8
CONCLUSION
For all of the foregoing reasons. it is respectfully
submitted that the judgement and conviction of the lower court be affirmed.
Respectfully submitted,
CHARLES M. CONDON
Attorney General
JOHN W. McINTOSH
Chief Deputy Attorney General
CHARLES H. RICHARDSON
Assistant Deputy Attorney General
E. L. CLEMENTS, III
Solicitor, Twelfth Judicial Circuit
BY: CHARLES H. RICHARDSON
Office of the Attorney General Post Office Box 11549
Columbia, SC 29211 (803) 734‑3727
ATTORNEYS FOR RESPONDENT
September 17, 2001
9
STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
Appeal From Florence Count),
Honorable B Hicks Harwell, Jr.,
Circuit Court Judge
THE STATE,
Respondent,
vs.
RONALD P. WHITE,
Appellant.
CERTIFICATE OF COUNSEL
The undersigned certifies that this Final Brief of
Respondent complies with Rule 210(b), SCACR.
CHARLES M. CONDON
Attorney General
JOHN W. McINTOSH
Chief Deputy Attorney General
CHARLES H. RICHARDSON
Assistant Deputy Attorney General
E. L. CLEMENTS, III
Solicitor, Twelfth Judicial Circuit
B Y:
CHARLES H. RICHARDSON
Office
of Attorney General
Post
Office Box 11549
Columbia,
SC 29211
(803)
734‑3727
September 17, 2001 ATTORNEYS
FOR RESPONDENT
STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
Appeal From Florence County
Honorable B Hicks Harwell, Jr.,
Circuit Court Judge
THE STATE,
Respondent,
vs.
RONALD P. WHITE,
Appellant.
PROOF OF SERVICE
1, KATHY W. SCOTT, certify that I have served the Final
Brief of Respondent on Appellant by depositing three copies of the same in the
United States mail, postage prepaid, addressed to:
Jared S. Newman, Esquire
Post Office Box 690
Port Royal, South Carolina 29934
I further certify that all parties required by Rule to be
served have been served.
This 17th day of September, 200 1.
KATHY W. SCOTT
Administrative Assistant
Office of Attorney General
Post Office Box 11549
Columbia, SC 29211
(803) 734‑3727