STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Timothy N. Barber, FILED
Petitioner Below, Petitioner April 4, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs.) No. 13-0860 (Kanawha County 13-M-AP-6) OF WEST VIRGINIA
City of Charleston,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Timothy N. Barber, an attorney proceeding in his own interest, appeals an order
of the Circuit Court of Kanawha County, entered July 23, 2013, that found him guilty of parking in
a no parking zone in violation of the Charleston, West Virginia, Municipal Code. Respondent City
of Charleston (“the City”), by counsel Paul D. Ellis and Mandi Kay Carter, filed a summary
response.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
According to the testimony and evidence at petitioner’s May 31, 2013, de novo trial,1 on
February 8, 2013, petitioner stopped his vehicle in a no parking zone on Laidley Street in
Charleston. Petitioner left the vehicle’s motor running, activated the blinkers, and exited it briefly
to deliver a prescription to another attorney. Meter Patrol Officer Pam West ticketed petitioner for
parking in a no parking zone that was marked by a yellow curb.2 Officer West followed proper
1
Petitioner was originally found guilty of parking in a no parking zone by the Municipal
Court of Charleston. Petitioner appealed to the circuit court which afforded him a de novo trial
pursuant to West Virginia Code § 8-34-1(e). At trial, the City argued that petitioner’s appeal from
the municipal court was procedurally deficient for a number of reasons. However, finding that it
could dispose of petitioner’s case on the merits, the circuit court declined to rule on the procedural
issues. Similarly, because we affirm the circuit court’s decision on the merits, it is unnecessary for
us to address the alleged procedural defects in petitioner’s appeal to the circuit court. See infra.
2
Section 114-564 of the Charleston Municipal Code provides as follows:
(a) When official traffic control signs or markings are in place
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procedure by also photographing the car’s location at the time of the ticket. Officer West
subsequently returned to the location to take a second picture that clearly showed the sign that was
also at the no parking zone, stating, “NO PARKING HERE TO CORNER TOW AWAY.”
Petitioner argued at trial that because he left his vehicle standing (or idling), it was not
“parked” and further that he was “unloading” a prescription for another lawyer, which was
permissible in the zone. The City countered that a person needed a permit to legally load or unload
in the zone. In addition, petitioner asserted that no evidence existed that he intentionally violated
the City’s traffic ordinance. At the end of trial, the circuit court found that petitioner’s vehicle was
“parked” and directed the City’s counsel to prepare an appropriate order. In its July 23, 2013,
order, the circuit court noted petitioner’s argument that he was not guilty of a parking violation
when he was delivering a prescription to an attorney’s office, but found that petitioner was not
legally loading or unloading because he did not have a permit. The circuit court further determined
that petitioner’s vehicle was not in motion while it was standing in the no parking zone.
Accordingly, the circuit court found petitioner guilty of parking in a no parking zone in violation
of the City’s municipal code and fined him $25.
Petitioner now appeals the circuit court’s July 23, 2013, order finding him guilty of the
parking violation. We apply the standard for reviewing a judgment entered following a bench trial:
In reviewing challenges to the findings and conclusions of the circuit court made
after a bench trial, a two-pronged deferential standard of review is applied. The
final order and the ultimate disposition are reviewed under an abuse of discretion
standard, and the circuit court’s underlying factual findings are reviewed under a
clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. Pt. 1, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006) (quoting Syl. Pt. 1, Public
Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996)).
On appeal, petitioner avers that there was no proof that he intended to violate the City’s
traffic ordinance and argues that such proof was required. See Syl., State v. Great Atlantic &
Pacific Tea Co. of America, 111 W.Va. 148, 161 S.E. 5 (1931) (“The legislative purpose to
dispense with the element of intent in a statutory crime must be clearly expressed.”). This Court
giving notice, no person shall park a vehicle at any time upon any of
the streets or parts of streets designated by such signs or markings as
prohibited parking areas.
(b) In addition to or in lieu of posting official traffic-control
signs to establish a no parking zone or area, a no parking zone or
area may be established by painting the curb yellow; and the length
of such curb as so painted yellow shall be the length of such no
parking zone or area; and the yellow paint shall constitute an official
traffic control marker indicating a no parking zone or area.
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finds this argument is misplaced for two reasons: (1) petitioner never disputed that he was on
notice that there was no parking in the zone where he stopped his vehicle and left it standing; and
(2) petitioner never alleged that he did not intend to do what he did, which was to stop his car and
leave it standing in the zone. Rather, petitioner’s argument is that stopping a vehicle and leaving it
standing in a no parking zone should not be construed as “parking” the vehicle under the City’s
municipal code.
Pursuant to Section 114-2 of the Charleston Municipal Code, the term “park,” when
prohibited, includes “the standing of a vehicle.” See also W.Va. Code § 17C-1-54 (same). Section
114-2 provides that a person still may park “temporarily for the purpose of and while actually
engaged in loading or unloading.” See id. (same). The City argues that for a person to be “loading
or unloading,” he or she must be engaged in that business, such as a delivery person. This Court
notes that the circuit court rejected petitioner’s contention that he was “loading or unloading”
merely because he was bringing a prescription to a colleague. “An appellate court may not . . .
weigh evidence as that is the exclusive function and task of the trier of fact.” State v. Guthrie, 194
W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995). Therefore, after careful consideration, this
Court concludes that the circuit court did not abuse its discretion in finding petitioner guilty of
parking in a no parking zone in violation of the City’s municipal code and fining him $25.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: April 4, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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