§ 14-85. Loitering with harmful purpose or effect; loitering for the purposes of prostitution and loitering for the purposes of drug trafficking.

(a)

Definitions as used in this section:

Commit prostitution means to engage in sexual conduct, as defined herein, in exchange for goods or a fee.

Conviction means an adjudication of guilt, upon verdict, plea or bond forfeiture, pursuant to any federal, state or local law regarding prostitution, loitering for the purposes controlled substances and includes a verdict of guilty, a finding of guilty and a court's acceptance of any plea other than not guilty.

Drug paraphernalia means drug paraphernalia as the term is defined S.C. Code § 44-53-100 and section 14-5 of this Code, excluding, however hypodermic syringes or needles in the possession of a confirmed diabetic or a person directed by his or her physician to use such items.

Duration means the extent or period of time during which an act or conduct exists, continues or persists.

Frequency means the recurrence, repetition or number of times an act or conduct occurs within a specified time period of any length.

Illegal drug activity means unlawful conduct contrary to any provision of S.C. Code title 44-53-10 et seq. or the equivalent federal statute, state statute, or ordinance of any political subdivision of this state.

Intensity means the display of a distinctive feature of an observable degree in terms of effort, force or the impact of an act or conduct.

Known drug trafficker means a person who has, within the knowledge of the arresting officer, been convicted, upon verdict, plea or bond forfeiture, within the last two years in any court of any illegal drug activity.

Known prostitute or procurer means a person who within the last two years previous to the date of arrest for violation of this section, has within the knowledge of the arresting officer been convicted, upon verdict, plea or bond forfeiture, of an offense involving prostitution.

Loiter means to idly stand, sit, lie about or remain in essentially any one place or location with a harmful purpose or effect inimitable to the public expectation of peace, order and use of facility. This section may not be construed to prevent orderly picketing or other lawful assembly.

Manner means the bearing or demeanor of the actor in accomplishing the act or conduct, or the means or mode of accomplishment of the act or conduct.

Public place means an area generally visible to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), and buildings open to the general public including those which serve food or drink, or provide entertainment, and the doorways and entrances to buildings or dwellings and the grounds enclosing them.

Sexual conduct means any of the following:

(1)

Sexual intercourse in its ordinary sense, which occurs upon any penetration, however slight, or contact between persons involving the sex organs of one and the mouth or anus of another;

(2)

Masturbation, manual or instrumental, of one person, or of one person by another.

(b)

Loitering for harmful purpose or effect. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him to identify himself and explain his presence and the conduct which was observed and raised suspicion. No person shall be convicted of an offense under this section if the peace officer did not comply with the preceding sentence, or if it appears to the finder of fact at trial that the explanation given by the actor was actually true and, if believed by the peace officer at the time, would have dispelled the alarm. A person is guilty of loitering with harmful purpose or effect when, given the time and place, the person exhibits conduct differentiated from that of law abiding citizen, such conduct being of observable frequency, intensity, manner or duration as observed by the law enforcement officer that alarm and further investigation is warranted. Among the acts, conduct, facts or activities which may be considered in determining whether such alarm is warranted is whether the actor:

(1)

Shows an intent to establish physical control, to the exclusion of others, over an identifiable public area by the placement of objects so as to prevent another's use, or by recumbence, lounging or sleeping in a public place in a prolonged physical occupation unusual for a law abiding citizen;

(2)

Shows intent to intimidate, frighten or harass others by word or conduct from entering that area;

(3)

Is or is becoming apparently intoxicated or unaware of the surroundings;

(4)

Obstructs or hinders vehicles or pedestrians, or persons lawfully in the place;

(5)

Takes flight upon appearance of a law enforcement officer;

(6)

Refuses to identify himself, upon detention and investigation based upon articulable reasonable suspicion;

(7)

Appears to be engaged or about to be engaged in the commission of a crime;

(8)

Manifestly endeavors to conceal himself or any object;

(9)

Congregates or remains in a public place for the purpose of seeking occasional or day labor employment which may characterized by remaining idly in a public area contiguous or adjacent to a construction sales related business entity, temporary employment agency or day labor establishment;

(10)

Congregates or remains within the boundaries of a commercial property either after business hours, or during business hours without contemporaneous commercial activity, when the premises are posted with conspicuous "No Loitering" signs, with such loitering constituting a public nuisance;

(11)

Is the subject of any court order, which directs the person to stay out of any specified area as a condition of release from custody, a condition of probation or parole or other supervision or any court order, in a criminal or civil case involving loitering.

(c)

Loitering for the purposes of prostitution. A person is guilty of loitering for the purposes of prostitution if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to commit prostitution. Among the acts, conduct, facts or activities which may be considered in determining, whether the actor is engaged in loitering for the purposes of prostitution are that he or she:

(1)

Repeatedly beckons to, stops or attempts to stop, or engages passersby in conversation; or

(2)

Repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture; or

(3)

Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to stop pedestrians; or

(4)

Inquires whether a potential patron, procurer or prostitute is a police officer, searches for articles that would identify a police officer, or requests the touching or exposing of genitals or female breasts to prove that the person is not a police officer; or.

(5)

Is a known prostitute or procurer, and is observed engaging the acts or conduct enumerated immediately above; or

(6)

Is the subject of any court order, which directs the person to stay out of any specified area as a condition of release from custody, a condition of probation or parole or other supervision or any court order, in a criminal or civil case involving prostitution; or

(7)

Has been evicted as the result of his or her prostitution activity and ordered to stay out of a specified area affected by prostitution activity.

(d)

Loitering for the purposes of drug trafficking. A person is guilty of loitering for the purposes of drug-trafficking if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to engage in unlawful conduct involving controlled substances according to federal, state or local laws regulating same. The following acts, conduct, facts or activities do not by themselves constitute the crime of drug-traffic loitering. Among the acts, conduct, facts or activities that may be considered in determining whether the actor is engaged in drug-traffic loitering are that he or she:

(1)

Is seen by the officer to be in possession of drug paraphernalia; or

(2)

Is a known drug trafficker (provided, however, that being a known drug trafficker, by itself, does not constitute the crime of drug-traffic loitering); or

(3)

Repeatedly beckons to, stops or attempts to stop passersby, or engages passersby in conversation; or

(4)

Repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture; or

(5)

Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to stop pedestrians; or

(6)

Is the subject of any court order, which directs the person to stay out of any specified area as a condition of release from custody, a condition of probation or parole or other supervision or any court order, in a criminal or civil case involving illegal drug activity; or

(7)

Has been evicted as the result of his or her illegal drug activity and ordered to stay out of a specified area affected by drug-related activity.

(e)

Detention and investigation upon reasonable suspicion. Upon establishing reasonable suspicion, any law enforcement officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed or is committing the crimes of loitering with the purpose of prostitution or drug trafficking, and may ascertain his identity and investigate the suspicious circumstances of the loitering and conduct as detailed herein surrounding his presence. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any law enforcement officer.

(f)

Penalty. Any violation of the provisions of this law constitutes a misdemeanor punishable by imprisonment for not more than 30 days or by a fine not to exceed $500.00, or by both.

(g)

Severability. If any section, sentence, clause, or phrase of this section is held invalid or unconstitutional by any court of competent jurisdiction, it shall in no way affect the validity of any remaining portions of this law.

(Ord. No. 2004-50, 7-22-04; Ord. No. 2005-94, § 2, 2-28-06; Ord. No. 2008-69, 9-23-08; Ord. No. 2009-7, 2-24-09)

Editor's note

Ord. No. 2009-7, adopted Feb. 24, 2009, amended the Code by amending § 14-85 title to read as herein set out. Former § 14-85 title pertained to loitering with harmful purpose or effect; prostitution and drug loitering. See the Code Comparative Table for complete derivation of section.