Town of Sullivan's Island v. Murray

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Town of Sullivan's Island, Respondent,

v.

Michael Murray, Appellant.

Appellate Case No. 2018-000511

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Opinion No. 5856
Heard September 23, 2020 – Filed September 1, 2021

REVERSED

Mary Duncan Shahid, of Nexsen Pruet, LLC, and
Stephen Peterson Groves, Sr., of Butler Snow, LLP, both
of Charleston, for Appellant.

John Joseph Dodds, III, of The Law Firm of Cisa &
Dodds, LLP, of Mount Pleasant; and John Phillips
Linton, Jr. and George Trenholm Walker, both of Walker
Gressette Freeman & Linton, LLC, of Charleston, all for
Respondent.

LOCKEMY, C.J.: Michael Murray appeals the circuit court's order affirming his
municipal court conviction for violating the Town of Sullivan's Island's (TOSI's)
ordinances related to the construction of a dock. He argues the circuit court erred
by (1) applying TOSI's municipal code, (2) holding TOSI's interpretation of its
enforcement authority did not violate the rule of fair notice, (3) failing to find
TOSI's ordinance criminalized conduct otherwise legal in South Carolina, and (4)
failing to hold TOSI's actions were arbitrary and capricious. We reverse.

FACTS/PROCEDURAL HISTORY

Murray owns American Dock and Marine Construction (ADMC) and is a licensed
marine contractor. ADMC specializes in dock, boatlift, and other construction in
wetlands areas. Jason Tomkins hired ADMC to construct a dock (the Dock) at
1102 Osceola Avenue. In 2014, Murray obtained an accessory structures permit
from TOSI for the construction of the Dock. As part of that permit, TOSI also
issued ADMC a Certificate of Zoning Compliance, which stated, "Move pierhead,
floating[, and] boatlift landward to not exceed adjacent docks." Additionally, the
permit required Murray to submit an "as-built" survey1 to TOSI when he
completed the Dock.

ADMC completed the Dock in 2014. Murray's as-built survey showed the Dock
extended nine feet past the adjacent docks. Subsequently, TOSI arrested Murray
and Tomkins and charged them with violation of TOSI's ordinance sections 21-752
and 5-10.3 Murray moved to dismiss the charge, arguing that TOSI's interpretation
was arbitrary and that the dock did not interfere with navigation because the
boundaries of the body of water are not fixed and move with the flow of the body
of water. The municipal court denied Murray's motion.

The case proceeded to a bench trial before the municipal court. Joseph Henderson,
TOSI's zoning administrator, testified Murray's construction plan showed the Dock
extended beyond adjacent docks. He explained he approved the permit but added a
specific condition under the work description section that the Dock not extend
beyond adjacent docks. Henderson spoke with Murray about this requirement. He
testified TOSI's interpretation of section 21-75 was that docks could not extend
farther than adjacent docks because they would interfere with navigation. He
testified that by constructing the Dock beyond adjacent docks, Murray violated the
terms and conditions of the permit that was issued.

1
An "as-built" survey is a survey performed after construction is completed
indicating the metes and bounds of the final location of the structure.
2
Town of Sullivan's Island, S.C., Code § 21-75 (2007) ("No dock shall be
permitted to be constructed which extends into the channel or extends so far as to
interfere with navigation.").
3
Town of Sullivan's Island, S.C., Code § 5-10 (2005) (requiring builders to submit
permit applications in writing to the TOSI Building inspector).
Randy Robinson, TOSI's chief building inspector, testified he established TOSI's
requirement that docks cannot exceed adjacent docks. He testified TOSI requires
new docks not exceed adjacent docks in order to facilitate navigation because the
docks act as a guide going down the water.

Murray testified the Dock was built at mean low water; thus, there was no
navigability where the Dock was located because it was on mud plats. Murray
stated navigation was in the centerline of the body of water, and there was no
reason to navigate near a dock. Murray stated his crew lined up the docks the best
they could. He admitted he reviewed the permit's language that the Dock could not
"exceed adjacent docks" and signed the permit. He also acknowledged the Dock
extended beyond the adjacent docks by 9.2 feet. Murray admitted the specific
notation "must not exceed adjacent docks" was a part of the building permit.

TOSI argued that Murray was required to have a permit to construct the Dock, it
gave specific approval with conditions, and Murray did not meet those conditions.
Murray argued TOSI's decision not to allow the construction of a dock beyond
adjacent docks was TOSI's interpretation, and the ordinances did not state a dock
could not exceed adjacent docks. He further asserted TOSI presented no evidence
the Dock interfered with navigation. Murray claimed the only condition on the
permit was that he submit an as-built survey. The municipal court found Murray
guilty of the offense and ordered him to pay a fine of $1,040.

Murray appealed to the circuit court, arguing TOSI presented no evidence the
Dock interfered with navigation and that no legal requirement prohibited a dock
from exceeding adjacent docks. Murray further asserted no evidence supported his
conviction because he complied with all requirements for approval to construct the
Dock. He also argued the condition contained in the permit was ambiguous.
Murray claimed he did not have fair notice that building the Dock nine feet
forward of adjacent docks was a criminal violation and TOSI's prosecution of such
an unwritten standard was arbitrary.

The circuit court affirmed Murray's municipal court conviction, stating, "Based on
the record, Murray acknowledged notice of the zoning laws and permit
requirements and was found in violation. Murray has failed to demonstrate an
error of law." Although the circuit court found TOSI's ordinances contained no
express requirement prohibiting a dock from extending farther than adjacent docks,
it concluded Murray was required to obtain a building permit for the Dock, the
permit prohibited the Dock from extending past adjacent docks, and it was
undisputed the Dock extended past adjacent docks. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err by affirming Murray's municipal court conviction based
on TOSI's ordinances?

2. Did the circuit court err by affirming the municipal court because TOSI's
ordinances violated the rule of fair warning of potential illegality?

3. Did the circuit court err by failing to find TOSI's interpretation of its authority
resulted in criminalizing conduct that was otherwise legal under South Carolina
law?

4. Did the circuit court err by failing to hold TOSI's actions were an arbitrary and
capricious violation of Murray's due process rights?

STANDARD OF REVIEW

"In criminal appeals from municipal court, the circuit court does not conduct a de
novo review." City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879,
880 (2007). "In criminal cases, the appellate court reviews errors of law only."
State v. Vinson, 400 S.C. 347, 351, 734 S.E.2d 182, 184 (Ct. App. 2012).
"Therefore, our scope of review is limited to correcting the circuit court's order for
errors of law." Suchenski, 374 S.C. at 15, 646 S.E.2d at 880.

LAW/ANALYSIS

Murray argues the circuit court erred in affirming his conviction. He asserts
sections 21-75 and 5-10 do not prohibit a dock from extending farther into the
channel than adjacent docks. He asserts TOSI's interpretation that a dock cannot
extend past adjacent docks was an unpromulgated and noncodified requirement
that did not provide fair warning of criminal liability. We agree.

Section 21-75(B)(1) states, "No dock shall be permitted to be constructed which
extends into the channel or extends so far as to interfere with navigation . . . ." "It
shall be unlawful to erect, construct, improve, alter or repair any building, sign, or
other structure . . . or alter any parcel of land in preparation of such erection,
construction, improvement or repair without first having obtained from the
Building Inspector a written permit for such erection . . . ." Town of Sullivan's
Island, S.C., Code § 5-9 (2007). Section 5-10 requires permit applications be made
in writing to the TOSI building inspector.

"Any person violating . . . this Zoning Ordinance shall be guilty of a misdemeanor
and, upon conviction, shall be fined and/or imprisoned, . . . in an amount of no
more than $500.00 or imprisonment for 30 days or both." Town of Sullivan's
Island, S.C., Code § 21-192 (2005).

Violation of the provisions of this ordinance or failure to
comply with grants of variance or special exceptions,
shall constitute a misdemeanor. Any person who violates
this ordinance or fails to comply with any of its
requirements shall, upon conviction thereof, be fined not
more than $500.00 or imprisoned for not more than 30
days, or both . . . . Each day such violation continues
shall be considered a separate offense.

Town of Sullivan's Island, S.C., Code § 5-75 (1997).

"[P]enal statutes are to be strictly construed. This rule of lenity applies when a
criminal statute is ambiguous, and requires any doubt about a statute's scope be
resolved in the defendant's favor." State v. Miles, 421 S.C. 154, 164, 805 S.E.2d
204, 210 (Ct. App. 2017). "One of the foundations of the rule of lenity is the
concept of fair notice—the idea that those trying to walk the straight and narrow
are entitled to know where the line is drawn between innocent conduct and
illegality." Id. "Criminal ordinances are, of course, to be strictly construed and a
defendant has a right to know just wherein he is charged with the commission of a
crime . . . ." Town of Conway v. Lee, 209 S.C. 11, 18, 38 S.E.2d 914, 917 (1946).

"The void-for-vagueness doctrine rests on the constitutional principle that
procedural due process requires fair notice and proper standards for adjudication."
State v. Neuman, 384 S.C. 395, 402, 683 S.E.2d 268, 271 (2009) (quoting State v.
Houey, 375 S.C. 106, 113, 651 S.E.2d 314, 318 (2007)). "A law is
unconstitutionally vague if it forbids or requires the doing of an act in terms so
vague that a person of common intelligence must necessarily guess as to its
meaning and differ as to its application." Curtis v. State, 345 S.C. 557, 572, 549
S.E.2d 591, 598 (2001).
"[T]he terms of a penal statute . . . must be sufficiently explicit to inform those who
are subject to it what conduct on their part will render them liable to its
penalties . . . ." Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). "[A]ll the
Constitution requires is that the language convey sufficiently definite warnings as
to the proscribed conduct when measured by common understanding and
practices." S.C. Dep't of Soc. Servs. v. Michelle G., 407 S.C. 499, 506, 757 S.E.2d
388, 392 (2014) (alteration in original) (quoting Curtis, 345 S.C. at 572, 549
S.E.2d at 599)).

We hold the circuit court erred in affirming Murray's municipal court conviction
because TOSI's ordinances were vague as applied here, such that they did not
provide Murray with sufficient fair notice that violation could result in criminal
liability. Further, TOSI failed to present evidence the docks actually interfered
with navigation or in any way extended into the channel. Here, Robinson's
testimony was the only evidence that Murray's dock interfered with navigation, and
his conclusory statements were premised on only the permit notation and not the
legal provisions of any ordinance. TOSI presented no evidence of how the dock
actually interfered with boats navigating the channel.

Moreover, the ordinance failed to provide fair notice this conduct was a criminal
violation. The United States Supreme Court in Connally held a criminal statute
that required employers to pay a minimum wage equivalent to the "current rate of
per diem," as determined by the Oklahoma Commissioner of Labor, was
unenforceable because it did not state a specific sum sufficient to give fair notice.
Connally, 269 U.S. at 393-94. The Court held the statute failed to provide an
ascertainable standard of guilt because it did not forbid a specific or definite act.
Id. Here, TOSI's ordinance did not expressly proscribe the prohibited conduct—
constructing a dock farther into the waterway than adjacent docks—for which
Murray was found guilty. Moreover, like in Connally, the prohibited act was not
determined by the language of the law itself, but instead by a decision of a
government employee.

Without an express prohibition in the ordinance itself, the ordinance lacked proper
standards for adjudication. See Neuman, 384 S.C. at 402, 683 S.E.2d at 271
(providing "procedural due process requires fair notice and proper standards for
adjudication" (quoting Houey, 375 S.C. at 113, 651 S.E.2d at 318)). Testimony at
trial showed there were different interpretations regarding what constituted a dock
that interfered with navigation. See Connally, 269 U.S. at 393 ("The citizen cannot
be held to answer charges based upon penal statutes whose mandates are so
uncertain that they will reasonably admit of different constructions."). The
ordinance that TOSI claims prohibits the construction of a dock from extending
past other docks only states a dock cannot interfere with navigation. This broad
statement renders the ordinance vague as TOSI sought to apply it here because
interference is not defined and was based solely on the interpretation of the
building inspector. See Connally, 269 U.S. at 391 ("[T]he terms of a penal
statute . . . must be sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties . . . ."). Because the
building inspector decided what constituted prohibited conduct without any
guidance from the codified language, the citizenry was not informed what acts
were criminal. See McBoyle v. United States, 283 U.S. 25, 27 (1931) ("To make
the warning fair, so far as possible the line should be clear."). Thus, the ordinance
was too vague to support criminal prosecution. See Bouie v. City of Columbia, 378
U.S. 347, 351 (1964) ("No one may be required at peril of life, liberty or property
to speculate as to the meaning of penal statutes. All are entitled to be informed as
to what the State commands or forbids." (quoting Lanzetta v. New Jersey, 306 U.S.
451, 453 (1939))).

We reverse the circuit court's order affirming Murray's conviction because TOSI's
ordinances failed to provide Murray with fair notice that building a dock beyond
adjacent docks was a criminal violation. Because this issue is dispositive, we need
not address Murray's remaining issues. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) ("In light of our
disposition of the case, it is not necessary to address [the] remaining issues.").

CONCLUSION

For the foregoing reasons, the circuit court's order affirming Murray's conviction is

REVERSED.

KONDUROS and MCDONALD, JJ., concur.