Cricket Store 17, LLC v. City of Columbia Bd. of Zoning Appeals
| Decision Date | 07 August 2019 |
| Docket Number | Opinion No. 5673,Appellate Case No. 2017-000561 |
| Citation | 428 S.C. 270,834 S.E.2d 209 |
| Court | South Carolina Court of Appeals |
| Parties | CRICKET STORE 17, LLC d/b/a Taboo, Appellant, v. CITY OF COLUMBIA BOARD OF ZONING APPEALS, Respondent. City of Columbia Zoning Administrator, Counterclaimant, v. Cricket Store 17, LLC d/b/a Taboo, Counterdefendant. |
Thomas R. Goldstein, of Belk Cobb Infinger & Goldstein, PA, of Charleston, for Appellant.
Peter M. Balthazor, of Riley Pope & Laney, LLC, of Columbia, and Scott D. Bergthold, of Chattanooga, Tennessee, for Respondent.
Cricket Store 17 d/b/a Taboo (Taboo) appeals the order of the circuit court affirming the decision of the City of Columbia Board of Zoning Appeals (the Board) in denying Taboo the right to request a special exception from a city ordinance limiting the operation of sexually-oriented shops within the limits of the City of Columbia (the City). We affirm.
In 2011, Taboo applied for a license to operate the City's only licensed adult business. The City issued the license on December 5, 2011. On December 19, 2011, the City hired Scott Bergthold, a Tennessee attorney who specializes in handling adult businesses regulation/zoning. The City passed a licensing ordinance to regulate adult businesses. Subsequently, Bergthold drafted a zoning ordinance to regulate adult business locations for the City. This ordinance, sections 17-371 to -376 of the City of Columbia Code of Ordinances, (the ordinance) was enacted in November of 2012.
Section 17-374(a) of the ordinance provides: Taboo brought constitutional challenges against the ordinance in federal court and lost. See Cricket Store 17, LLC v. City of Columbia , 97 F. Supp. 3d 737 (D.S.C. 2015) (), aff'd , 676 Fed. Appx. 162 (4th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S. Ct. 116, 199 L.Ed.2d 32 (2017).
After Taboo's federal claims failed, Taboo applied to the Board for a special exception. However, the Zoning Administrator rejected and returned Taboo's application for special exception by letter dated February 26, 2016, stating the ordinance prohibited Taboo from filing an application for special exception. Meanwhile, the City threatened criminal prosecution against Taboo for violating the ordinance. On January 28, 2016, the Zoning Administrator delivered a written notice of violation letter to Taboo. Taboo then filed two appeals with the Board—one appealing the Zoning Administrator's decision to issue citations and a second one appealing the Board's refusal to accept its application for special exception. The Board accepted both appeals.
The City scheduled both administrative hearings for April 12, 2016. After the hearings were conducted, the Board affirmed the Zoning Administrator's decision on both counts. Taboo appealed these rulings to the circuit court which affirmed. This appeal followed.
This court reviews appeals from a local zoning board pursuant to the standards proscribed in section 6-29-840 of the South Carolina Code (Supp. 2018). Austin v. Bd. of Zoning Appeals , 362 S.C. 29, 35, 606 S.E.2d 209, 212 (Ct. App. 2004). Findings of fact will not be disturbed unless the record contains no evidence to reasonably support them. Id . However, "[i]ssues involving the construction of ordinances are reviewed as a matter of law under a broader standard of review than is applied in reviewing issues of fact." Eagle Container Co. v. Cty. of Newberry , 379 S.C. 564, 568, 666 S.E.2d 892, 894 (2008).
As an initial matter, the City argues res judicata bars Taboo's claims in this case, and therefore, the circuit court's order should be affirmed. The City maintains it defeated Taboo's challenges to the ordinance in federal court and those decisions prohibit relitigation of any issues that were, or could have been, raised therein. We disagree.
Res judicata bars subsequent actions by the same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between those parties. Under the doctrine of res judicata, [a] litigant is barred from raising any issues which were adjudicated in the former suit and any issues which might have been raised in the former suit.
Judy v. Judy , 393 S.C. 160, 172, 712 S.E.2d 408, 414 (2011) (quoting Plum Creek Dev. Co. v. City of Conway , 334 S.C. 30, 34, 512 S.E.2d 106, 109 (1999) (alteration in original) (quotation marks omitted)).
In this case, the circuit court held The circuit court went on to affirm the rejection of Taboo's application for special exception and the issuance of citations in January 2016 on the merits.
We conclude res judicata does not apply to the matters on appeal in the present case. The federal litigation affirmed the constitutionality of the ordinance generally and as applied to Taboo. While Taboo is still attempting to postpone its demise in its current location, it is not alleging the ordinance is unconstitutional or cannot be applied to it on a substantive basis. Therefore, the issues raised in this appeal were not litigated in the federal action nor could they have been. First, the citations were issued in 2016, after the district court's opinion. Likewise, Taboo did not apply for a special exception until 2016. Both issues involve the interpretation and procedural implementation of the ordinance as opposed to its constitutional validity or general application to Taboo. Because we conclude res judicata does not bar Taboo's arguments, we will address them in turn.
Section 17-374(a) of the ordinance provides: Taboo contends use of the word "may" means the Board had the discretion to grant its request for a special exception. Consequently, the circuit court's conclusion the Board could not at least consider its application is erroneous. We disagree.
"The primary rule of statutory construction is that the [c]ourt must ascertain the intention of the legislature." Kerr v. State , 345 S.C. 183, 188, 547 S.E.2d 494, 496 (2001). "In interpreting a statute, ‘the court must give the words their plain and ordinary meaning without resorting to a tortured construction which limits or expands the statute's operation.’ "
State v. Bull , 350 S.C. 58, 61, 564 S.E.2d 351, 353 (Ct. App. 2002) (quoting State v. Dickinson , 339 S.C. 194, 199, 528 S.E.2d 675, 677 (Ct. App. 2000) ). "Furthermore, ‘a statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers.’ " Id . (quoting State v. Baker , 310 S.C. 510, 512, 427 S.E.2d 670, 672 (1993) ). "As with statutes, the lawmakers' intent embodied in an ordinance ‘must prevail if it can be reasonably discovered in the language used.’ " Clear Channel Outdoor v. City of Myrtle Beach , 360 S.C. 459, 466, 602 S.E.2d 76, 79 (Ct. App. 2004) (quoting Charleston Cty. Parks & Recreation Comm'n v. Somers , 319 S.C. 65, 67, 459 S.E.2d 841, 843 (1995) ).
"The use of the word ‘may’ signifies permission and generally means that the action spoken of is optional or discretionary unless it appears to require that it be given any other meaning ...." Kennedy v. S.C. Ret. Sys ., 345 S.C. 339, 352-53, 549 S.E.2d 243, 250 (2001). "[W]hen the question arises whether ‘may’ is to be interpreted as mandatory or permissive in a particular statute, legislative intent is controlling." Robertson v. State , 276 S.C. 356, 358, 278 S.E.2d 770, 771 (1981). Stringer v. Realty Unlimited, Inc. , 97 S.W.3d 446, 448 (Ky. 2002) (quoting Clark v. Riehl , 313 Ky. 142, 230 S.W.2d 626, 627 (1950) ); see also In re Denial of Application for Issuance of One Original (New) On-Premises Consumption Beer/Wine License , 267 Mont. 298, 883 P.2d 833, 836 (1994) ().
In the ordinance at issue, use of the term "no" at the beginning reveals the intent that variances or special exceptions to the ordinance not be allowed. South Carolina case law has recognized the term "may" does not exclusively connote discretionary conduct when construing it so would violate legislative intent. Furthermore, the rules of construction indicate the court is not to give words a tortured meaning. To construe this ordinance as discretionary requires one to read out the word "no" in a way that contorts its plain meaning and renders it superfluous. Consequently, we affirm the circuit court's finding the ordinance did not permit the Board discretion to grant Taboo's request for special exception.
Next, Taboo argues the circuit court erred in not finding section 17-374(a) of the ordinance conflicts with the enabling legislation that creates local zoning boards of appeal, section 6-29-800 of the...
To continue reading
Request your trial