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Be Mi, Inc. v. South Carolina Department of Revenue

Court of Appeals of South Carolina

May 28, 2014

Be Mi, Inc. d/b/a St. Clements Beach Bar & Grill, Respondent,
v.
South Carolina Department of Revenue, and St. Clements Homeowners Association, Intervenor, of whom St. Clements Homeowners Association is the Appellant, and South Carolina Department of Revenue is the Respondent

Heard April 9, 2014

Appeal From The Administrative Law Court. Appellate Case No. 2012-212861. Shirley C. Robinson, Administrative Law Judge.

James J. Corbett, of Holler, Garner, Corbett, Ormond, Plante & Dunn, of Columbia, for Appellant.

Clifford Leon Welsh, of Welsh & Hughes, of North Myrtle Beach, for Respondent Be Mi, Inc.

Kathryn Ray Brown, Sean Gordon Ryan, Harry T. Cooper, Jr., and Milton Gary Kimpson, all of Columbia, for Respondent South Carolina Department of Revenue.

KONDUROS, J. WILLIAMS and LOCKEMY, J., concur.

OPINION

Page 738

[408 S.C. 293] KONDUROS, J.

St. Clements Homeowners Association (the Homeowners Association) appeals the administrative law court's (ALC) decision that Be Mi, Inc. met the requirements for a restaurant liquor by the drink license. It contends Be Mi does not meet the seating requirements because some of the seats counted are in common areas and other seats are bar stools at a rail. It also asserts Be Mi does not have control over the deck, where many of its seats are located, and does not have a lease for the deck space. We affirm.

FACTS

In 1988, Be Mi purchased a snack and pool bar, known as St. Clements Beach Bar & Grill, located in the St. Clements [408 S.C. 294] condominium/hotel complex in Myrtle Beach. Raymond Luke Goude is the sole owner and officer of Be Mi. Be Mi has had a beer and

Page 739

wine license as well as a restaurant liquor by the drink license since 1991.[1] At that time, the developer of the complex was the president of the Homeowners Association. The developer and another board member allowed Be Mi to expand by adding a covered wooden deck on top of two parking spaces. There is no seating available inside the bar.

On March 6, 2007, the Homeowners Association filed for an injunction to have Be Mi remove the deck it built. On December 20, 2010, the Master-in-Equity denied the Association's claim for an injunction and ordered that Be Mi had the right to retain and maintain the side deck. The Association appealed that decision to this court.

On May 19, 2011, Be Mi applied to the South Carolina Department of Revenue (the DOR) for the renewal of its beer and wine permit and its restaurant liquor by the drink license. On May 24, 2011, DOR denied the application due to a valid public protest by the Homeowners Association. Be Mi protested the denial. South Carolina Law Enforcement Division (SLED) reviewed and investigated Be Mi's application. On September 30, 2011, the DOR confirmed the denial because of the valid public protest and because Be Mi failed to be engaged primarily and substantially in the preparation and service of meals. However, the DOR gave Be Mi the opportunity to correct the deficiencies. On October 27, 2011, Be Mi filed a request for a contested case hearing with the ALC. Following a second visit, SLED determined Be Mi met the requirements for a restaurant liquor by the drink license. The DOR withdrew the portion of its denial relating to Be Mi not meeting the requirements but determined the license still had to be denied due to the valid public protest.

The Homeowners Association filed a motion to intervene in the contested case, which the ALC granted. The ALC held a hearing on January 4, 2012, and the Homeowners Association agreed that it was not protesting the beer and wine permit. Goude testified Be Mi provided seating for forty people simultaneously at tables: twenty chairs at tables on the deck, [408 S.C. 295] eighteen chairs at tables on the roof, and bar stool space for four to six customers at a wide rail on the deck. Goude stated that Be Mi had purchased forty chairs for its use and the Association had twenty chairs to be used by guests poolside. He provided Be Mi owned the rooftop area as a limited common area. He indicated two stools in a picture provided by the Homeowners Association were located off of the deck but could be moved to the other side of the rail and be on the deck and would not affect his use.

Barbara Brown, an owner of one of the units at St. Clements and former board member of the Homeowners Association, testified that currently eighteen chairs were on the roof but there had previously only been twelve chairs. She did not believe more than twelve people could sit there comfortably. She also testified that typically sixteen tables were on the deck and it was not reasonable to seat twenty people there. She contended the Homeowners Association was protesting the license because people had complained of Goode asking them if they had brought their own food and drinks while sitting on the deck or around the pool. She stated " they didn't think they should be asked or didn't like being asked." She testified the Homeowners Association was protesting the license because Goude was " patrolling the area and making it like these was [sic] the premise[s] -- the whole area was the premise[s] of his business."

The DOR appeared at the hearing and represented that Be Mi met all of the statutory requirements for the restaurant liquor by the drink license. Be Mi had " sufficient space under [its] control to provide seating for 'forty persons simultaneously at tables for the service of meals.'" This appeal followed.

On December 18, 2013, this court affirmed the master's decision denying the injunction to remove the deck, finding: " B[e Mi] has constructed, maintained, and improved the ...


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