Horry County v. Parbel, No. 4388.

CourtCourt of Appeals of South Carolina
Writing for the CourtAnderson
Citation662 S.E.2d 466,378 S.C. 253
PartiesHORRY COUNTY, Respondent, v. David PARBEL, Kristen Parbel, Crystal Kawolski, Stephanie Regalado, & Laura Rajotte, Appellants.
Decision Date12 May 2008
Docket NumberNo. 4388.
662 S.E.2d 466
378 S.C. 253
HORRY COUNTY, Respondent,
v.
David PARBEL, Kristen Parbel, Crystal Kawolski, Stephanie Regalado, & Laura Rajotte, Appellants.
No. 4388.
Court of Appeals of South Carolina.
Heard May 6, 2008.
Decided May 12, 2008.
Rehearing Denied June 26, 2008.

[662 S.E.2d 468]

John S. Nichols, of Columbia, and Robert V. Phillips, of Rock Hill, for Appellants.

John L. Weaver and Brenda L. Gorski, both of Conway, for Respondent.

ANDERSON, J.


In 2004, several employees of Thee Doll House were arrested and cited for violating an Horry County zoning ordinance. They appeared before the magistrate court and were acquitted of the charges against them. Horry County appealed the magistrate court's ruling to the circuit court. Thee Doll House employees contend the circuit court erred in ruling on Horry County's appeal because it violated double jeopardy clauses of the federal and state constitutions and amounted to an advisory opinion. The employees further maintain the circuit court erred in denying their request for attorneys' fees and costs pursuant to the South Carolina Frivolous Civil Proceedings Sanction Act. We reverse in part and affirm in part.

FACTUAL/PROCEDURAL BACKGROUND

The facts of the case are not in dispute. On the evening of August 16, 2004, and on the following morning, undercover officers entered Thee Doll House and other strip clubs in Horry County to investigate whether dancers' breasts were properly covered. Officers arrested and cited Kristen Parbel, Crystal Kawolski, Stephanie Regalado, and Laura Rejotte for violating an Horry County zoning ordinance by either exposing their nipples or covering their nipples with only transparent "pasties." David Parbel, the manager on duty at Thee Doll House, was cited for permitting the female dancers to work while clothed in this manner. Law enforcement declared this type of breast exposure was a criminal violation of section 526.3 of the Horry County zoning ordinances. Subsequently, the charges were amended to allege criminal violation of section 1303 of the Horry County zoning ordinances.

Section 6-29-950(A) of the South Carolina Code (2004) authorizes the governing authorities of municipalities or counties to provide

662 S.E.2d 469

for the enforcement of any ordinance and provides:

A violation of any ordinance adopted pursuant to the provisions of this chapter is a misdemeanor. In case a building, structure, or land is or is proposed to be used in violation of any ordinance adopted pursuant to this chapter, the zoning administrator or other appropriate administrative officer. . . . may in addition to other remedies, institute injunction, mandamus, or other appropriate action or proceeding to prevent the unlawful. . . . use, or to correct or abate the violation. . . .

Additionally, Horry County zoning ordinance Section 1303 states:

(A) It shall be unlawful to use, occupy or permit the use or occupancy of any building, mobile home, or premises, or all or parts thereof hereafter created, erected, changed, converted, or wholly or partly altered or enlarged in its use or structure until a certificate of zoning compliance shall have been issued therefore by the zoning administrator stating that the proposed use of the building or land conforms to the requirements of the ordinance. (B) Failure to obtain a certificate of zoning compliance shall be a violation of this ordinance punishable under section 1308 of this ordinance.

Violating section 1303, as provided in section 1308, constitutes a misdemeanor:

Any person violating any provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction shall be imprisoned for a period not to exceed thirty (30) days and/or fined not more than two hundred dollars ($200.00) for each offense. Each day such violation continues shall constitute a separate offense. Nothing herein contained shall prevent the county from taking such other lawful action as is necessary to prevent or remedy any violation.

A criminal trial was held in magistrate's court, and Appellants requested a jury trial. After Horry County rested its case, Appellants moved for a dismissal of all charges. The magistrate granted Appellant's motion for dismissal and inculcated "the County has not met the allegations of this zoning ordinance in proving 1303." Horry County appealed the magistrate's ruling to the circuit court after Appellants' acquittal on March 8, 2005. Though the magistrate "prayed" for the circuit court to dismiss Horry County's appeal with prejudice, the circuit court found it had both subject matter jurisdiction over the issues raised in the appeal and personal jurisdiction over the Appellants. Appellants moved to dismiss Horry County's appeal based on the Double Jeopardy Clauses of the federal and state constitutions and sought sanctions for Horry County's pursuit of its appeal, averring the appeal was frivolous and violated the South Carolina Frivolous Civil Proceeding Sanction Act.

On appeal, the circuit court found Horry County's claim, "the dancers' failure to completely and opaquely cover their breasts violated [section] 1303(A) by changing or altering Thee Doll House `use' from a permissible nightclub into its `use' as an adult entertainment establishment," meritorious. The circuit court elucidated: "Under [the County's] theory, [section] 1303 required the dancers and duty manager to wait until after Thee Doll House sought and successfully obtained a Certificate of Zoning Compliance for its use as an adult entertainment establishment before using or permitting Thee Doll House to be used that way." However, the circuit court found double jeopardy prevented Appellants from being retried under the same charges. Finally, the circuit court denied Appellants' request for attorney's fees and costs because the case before the magistrate was criminal in nature and not a civil proceeding. Appellants' motion to alter or amend the circuit court's judgment was denied.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006); State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001); State v. Rice, 375 S.C. 302, 314, 652 S.E.2d 409, 414 (Ct.App. 2007); State v. Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct.App.2004). This court is bound by the circuit court's factual findings unless they are clearly erroneous. State v.

662 S.E.2d 470

Northcutt, 372 S.C. 207, 215, 641 S.E.2d 873, 877 (2007); State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000); State v. Edwards, 374 S.C. 543, 553, 649 S.E.2d 112, 117 (Ct.App.2007); State v. Patterson, 367 S.C. 219, 224, 625 S.E.2d 239, 241 (Ct.App. 2006); State v. Landis, 362 S.C. 97, 101, 606 S.E.2d 503, 505 (Ct.App.2004); see also State v. Abdullah, 357 S.C. 344, 349, 592 S.E.2d 344, 347 (Ct.App.2004).

On review, we are limited to determining whether the circuit court abused its discretion. State v. Laney, 367 S.C. 639, 643, 627 S.E.2d 726, 729 (2006); State v. Reed, 332 S.C. 35, 43, 503 S.E.2d 747, 751 (1998); State v. Grace, 350 S.C. 19, 23, 564 S.E.2d 331, 333 (Ct.App.2002). This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the circuit court's ruling is supported by any evidence. Wilson, 345 S.C. at 6, 545 S.E.2d at 829; State v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct. App.2007); State v. Mattison, 352 S.C. 577, 583, 575 S.E.2d 852, 855 (Ct.App.2003).

LAW/ANALYSIS

I. Error in Ruling on Merits of County's Appeal

A. Double Jeopardy

Appellants maintain the circuit court violated the Double Jeopardy Clause by ruling on Horry County's appeal after they were acquitted in magistrate's court. We agree.

The United States Constitution and the South Carolina Constitution protect against double jeopardy. See U.S. Const. Amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. . . ."); S.C. Const. Art. I, § 12 ("No person shall be subject for the same offense to be twice put in jeopardy of life or liberty, nor shall any person be compelled in any criminal case to be a witness against himself."); see also State v. Mathis, 359 S.C. 450, 457, 597 S.E.2d 872, 876 (Ct.App.2004) ("The Double Jeopardy Clauses of the United States and South Carolina Constitutions protect citizens from being placed twice in jeopardy of life or liberty."); State v. Cuccia, 353 S.C. 430, 434, 578 S.E.2d 45, 47 (Ct.App. 2003) ("Both the United States Constitution and the South Carolina Constitution protect against double jeopardy.").

Under the Double Jeopardy Clause a defendant is protected from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple prosecution for the same offense after an improvidently granted mistrial. State v. Gordon, 356 S.C. 143, 149, 588 S.E.2d 105, 108 (2003); State v. Kirby, 269 S.C. 25, 27-28, 236 S.E.2d 33, 34 (1977); Mathis, 359 S.C. at 457, 597 S.E.2d at 876; Cuccia, 353 S.C. at 434, 578 S.E.2d at 47; see also North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)); accord Schiro v. Farley, 510 U.S. 222, 229-30, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994); Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984); U.S. v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); U.S. v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Stevenson v. State, 335 S.C. 193, 198, 516 S.E.2d 434, 436 (1999); McMullin v. S.C. Dep't of Revenue & Taxation, 321 S.C. 475, 478, 469 S.E.2d 600, 602 (1996); State v. Owens, 309 S.C. 402, 405, 424 S.E.2d 473, 475 (1992).

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4 practice notes
  • The State v. Oxner, No. 26915.
    • United States
    • United States State Supreme Court of South Carolina
    • January 24, 2011
    ...that jurisdiction.--------Notes: 1. We overrule State v. Brown, 344 S.C. 302, 543 S.E.2d 568 (Ct.App.2001) and Horry County v. Parbel, 378 S.C. 253, 662 S.E.2d 466 (Ct.App.2008) to the extent they hold that Rule 74 has no application to criminal convictions appealed to the circuit court. 2.......
  • Collins v. Auto-Owners Ins. Co., Civil Action No. 4:09-696-TLW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 22, 2011
    ...discretion standard in reviewing the decision to award sanctions and the specific sanctions awarded under SCFCPSA. Horry County v. Parbel, 378 S.C. 253, 662 S.E.2d 466 (Ct. App. 2008). Rule 11 of the Federal Rules of Civil Procedure also provides for the award of sanctions. In relevant part......
  • Mauldin v. Heide, 2014-UP-081
    • United States
    • Court of Appeals of South Carolina
    • February 26, 2014
    ...an abuse of discretion standard in reviewing the decision to award sanctions and the specific sanctions awarded." Horry County v. Parbel, 378 S.C. 253, 265, 662 S.E.2d 466, 473 (Ct. App. 2008) (quoting Rutland, 371 S.C. 91, 97, 637 S.E.2d 316, 319 (2006) (internal quotations omitted)). A tr......
  • Mauldin v. Heide, Appellate Case No. 2012-212219
    • United States
    • Court of Appeals of South Carolina
    • February 26, 2014
    ...an abuse of discretion standard in reviewing the decision to award sanctions and the specific sanctions awarded." Horry County v. Parbel, 378 S.C. 253, 265, 662 S.E.2d 466, 473 (Ct. App. 2008) (quoting Rutland, 371 S.C. 91, 97, 637 S.E.2d 316, 319 (2006) (internal quotations omitted)). A tr......
4 cases
  • The State v. Oxner, No. 26915.
    • United States
    • United States State Supreme Court of South Carolina
    • January 24, 2011
    ...that jurisdiction.--------Notes: 1. We overrule State v. Brown, 344 S.C. 302, 543 S.E.2d 568 (Ct.App.2001) and Horry County v. Parbel, 378 S.C. 253, 662 S.E.2d 466 (Ct.App.2008) to the extent they hold that Rule 74 has no application to criminal convictions appealed to the circuit court. 2.......
  • Collins v. Auto-Owners Ins. Co., Civil Action No. 4:09-696-TLW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 22, 2011
    ...discretion standard in reviewing the decision to award sanctions and the specific sanctions awarded under SCFCPSA. Horry County v. Parbel, 378 S.C. 253, 662 S.E.2d 466 (Ct. App. 2008). Rule 11 of the Federal Rules of Civil Procedure also provides for the award of sanctions. In relevant part......
  • Mauldin v. Heide, 2014-UP-081
    • United States
    • Court of Appeals of South Carolina
    • February 26, 2014
    ...an abuse of discretion standard in reviewing the decision to award sanctions and the specific sanctions awarded." Horry County v. Parbel, 378 S.C. 253, 265, 662 S.E.2d 466, 473 (Ct. App. 2008) (quoting Rutland, 371 S.C. 91, 97, 637 S.E.2d 316, 319 (2006) (internal quotations omitted)). A tr......
  • Mauldin v. Heide, Appellate Case No. 2012-212219
    • United States
    • Court of Appeals of South Carolina
    • February 26, 2014
    ...an abuse of discretion standard in reviewing the decision to award sanctions and the specific sanctions awarded." Horry County v. Parbel, 378 S.C. 253, 265, 662 S.E.2d 466, 473 (Ct. App. 2008) (quoting Rutland, 371 S.C. 91, 97, 637 S.E.2d 316, 319 (2006) (internal quotations omitted)). A tr......

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