Could a South Carolina store bring civil and criminal shoplifting charges at the same time?

Plain-English summary

A state senator asked whether merchants could bring both civil and criminal charges against shoplifters. The AG read the civil shoplifting statute to allow the two paths when begun simultaneously. He distinguished that situation from a store using the statutory civil remedy first and filing criminal charges later, which the statute prohibited.

The timing mattered because the statute barred a store that used the civil provision from “subsequently filing criminal charges” against the same individual. The AG read “subsequently” to mean following in time. He did not say a criminal conviction was required before a civil action; the statute expressly said it was not.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a store pursue civil damages and criminal shoplifting charges together? A: The AG said yes, if the civil and criminal charges were brought simultaneously under the provision he examined.

Q: Could the store file a criminal charge after starting the statutory civil action? A: The AG said no. He read the statute's ban on subsequently filed criminal charges to cover charges brought later from the same incident.

Q: Did the civil case require a guilty plea or conviction first? A: No. The opinion quoted the statute saying a conviction or guilty plea was not a prerequisite to bringing the civil suit, obtaining judgment or collecting it.

Q: Did the statute address claims against a minor’s parent or guardian? A: Yes. The opinion quoted the provision imposing civil liability on a custodial parent or legal guardian who knew or should have known of the minor’s propensity to steal.

Background and statutory framework

The opinion examined the civil shoplifting provision's liability rules, its express statement that criminal conviction was unnecessary for a civil suit, and its restriction on criminal charges filed after the civil remedy was used. Its simultaneous-filing conclusion turned on the ordinary time-order meaning of “subsequently.”

Citations and references

Statute discussed: Section 15-75-40.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-2-2008-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/verdin-d-os-8519-1-2-08-charges-against-shoplifters.pdf

Original opinion text

HENRY MCMASTER
AITORNEY GENERAL

January 2, 2008

The Honorable Danny Verdin
Senator, District No. 9
P. 0. Box 272
Laurens, South Carolina 29360
Dear Senator Verdin:
In a letter to this office you questioned whether merchants can simultaneously bring both civil and criminal charges against shoplifters. You specifically referenced the provisions ofS.C. Code Ann. § 15-75-40 which provide for a civil action to be brought against shoplifters or custodial parents or legal guardians of an unemancipated minor who knew or should have known of the minor' s tendency to steal. As set forth by such provision:

(C) [a]n adult or emancipated minor who commits shoplifting against the property of a store or other retail mercantile establishment is civilly liable to the operator of the establishment in an amount...(as set forth) ... (D) [c]ustodial parents or legal guardians of an unemancipated minor who knew or should have known of the minor's propensity to steal are civilly liable for the minor who commits shoplifting against the property of a store or other retail mercantile establishment to the operator of the establishment in an amoW1t...(as set forth) .... Subsection (E) of such provision states that "[a] conviction or a plea of guilty for committing shoplifting is not a prerequisite to the bringing of a civil suit, obtaining a judgment, or collecting that judgment under this section." Also, subsection (F) states that
[t]he fact that an operator of a store or other retail mercantile establishment may bring an action against an individual as provided in this section does not limit the right of the merchant to demand, orally or in writing, that a person who is liable for damages and penalties under this section remit the damages and penalties before the commencement of a legal action. It is further provided by subsection (J) that

REMBERT C. DENNlS BUILDING

•

POST OFFICE Box 11549

•

CoLlfMBlA. SC 29211-1549

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Ta.EPHONE 803-734-3970

• FACSIMLLE 803-253-62R3

The Honorable Danny Verdin
Page 2
January 2, 2008

[t]he provisions of this section may not be construed to prohibit or limit any other cause of action which an operator of a store or other retail mercantile establishment may have against a person who unlawfully takes merchandise from the establishment. Subsection (L) states that
[a] store which utilizes the provisions of this section is prohibited from subsequently filing criminal charges against the individual pursuant to Section 16-13-11 O... (the shoplifting offense statute) .... (emphasis added). The term "subsequently filing criminal charges" is not further defined by the statute. As set forth in Reis v. Biggs Unified School District, 126 Cal.App.4th 809 at 820 (Cal.App.3Dist. 2005), the term "subsequent" is defined by the Merriam-Webster Collegiate Dictionary (10th ed. 2000) as "following in time, order, or place." The case of Bailey v. ANR Freight Systems, Inc., 1999 WL 33326908 (Mich. App. 1999) referenced that the term "subsequent" was defined by the Random House Webster's College Dictionary as "occurring or coming later or after." In State v. Dudoit, 978 P.2d 700, 711(Hawaii,1999), the term "subsequent'', quoting Black's Law Dictionary (6 1h ed. 1990) is defined as " ... following in time, coming or being later than something else; succeeding." Consistent with such definitions, in the opinion of this office, a store which brings a civil action against a shoplifter pursuant to Section 15-75-40 would be prevented from then filing criminal charges arising from that same incident. As set forth, the term "subsequent" is defined as that which follows a former event, and, therefore, "subsequent" criminal charges would not be in order in such situation. However, in the opinion of this office, a merchant could bring both civil and criminal charges against a shoplifter consistent with such provision ifthe charges are brought simultaneously. With kind regards, I am, Very truly yours, Henry McMaster

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By:

REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General