KNS Foundation v. City of Myrtle Beach ( 2015 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
KNS Foundation, LLC, d/b/a Elite, Appellant,
v.
City of Myrtle Beach, Respondent.
Appellate Case No. 2013-002793
Appeal From Horry County
William H. Seals, Jr., Circuit Court Judge
Unpublished Opinion No. 2015-UP-572
Heard November 10, 2015 – Filed December 30, 2015
AFFIRMED
Howell V. Bellamy, Jr., and Howell V. Bellamy, III, both
of Bellamy, Rutenberg, Copeland, Epps, Gravely &
Bowers, PA, of Myrtle Beach; John M. Leiter, of Law
Offices of John M. Leiter, PA, of Myrtle Beach; and
Armand G. Derfner, of Charleston, all for Appellant.
Michael Warner Battle, of Battle Law Firm, LLC, of
Conway, for Respondent.
PER CURIAM: KNS Foundation, LLC, d/b/a Elite (KNS) appeals a circuit court
order affirming the decision of the Myrtle Beach City Council to revoke KNS's
business licenses due to fraud or misrepresentation in the license application
process. On appeal, KNS argues the circuit court erred by (1) deciding the case
when it did not have a record of the city council hearing; (2) failing to require the
City of Myrtle Beach (the City) to prove its allegations of fraud by clear and
convincing evidence; and (3) affirming the revocation although it was unsupported
by evidence. We affirm.
1. As to Issue 1, we find evidence in the record demonstrates the circuit court had
the record from the city council proceedings and referenced its review of the record
on appeal in its decision. Thus, we find the circuit court properly entered its order
affirming the revocation of KNS's business license. See Conran v. Joe Jenkins
Realty, Inc., 263 S.C. 332, 334, 210 S.E.2d 309, 310 (1974) ("The burden of proof
is on the appellant to convince this [c]ourt that the lower court was in error.").
2. As to Issue 2, we find the circuit court did not err by declining to require a
heightened standard of proof to uphold the revocation of KNS's business licenses
based on allegations of fraud because fraud was not argued before the city council.
KNS first argued a heightened burden of persuasion applied at the hearing before
the circuit court. However, the circuit court was acting in its appellate capacity.
See S.C. Code Ann. § 18-7-10 (2014) ("When a judgment is rendered by a
magistrates court, by the governing body of a county or by any other inferior court
or jurisdiction, save the probate court, the appeal shall be to the circuit court of the
county wherein the judgment was rendered . . . ."). Thus, we find the circuit court
properly operated under a deferential standard of review. See Gay v. City of
Beaufort, 364 S.C. 252, 254, 612 S.E.2d 467, 468 (Ct. App. 2005) ("Where the city
council of a municipality has acted after considering all of the facts, the court
should not disturb the finding unless such action is arbitrary, unreasonable, or an
obvious abuse of its discretion.").
3. As to Issue 3, we find the circuit court properly found substantial evidence
existed to support the city council's decision to revoke KNS's business licenses.
First, based on testimony from City business license inspector Mary McDowell, we
find evidence supports the city council's finding that KNS falsely represented to
the City that it would not operate its business as a night club. Second, the
testimonies of McDowell, Officer Gavrilis, Officer Castle, and Chief Gall all
support the finding that KNS intended to charge for admission and falsely
represented to the City that it would not do so in order to gain approval of its
business license applications. The advertisements for Elite and Elite's social media
entries, as well as Elite's operation of a dance floor, provide additional support for
the City's action. See Gay, 364 S.C. at 254, 612 S.E.2d at 468 ("Where the city
council of a municipality has acted after considering all of the facts, the court
should not disturb the finding unless such action is arbitrary, unreasonable, or an
obvious abuse of its discretion."); id. ("This court will not disturb on appeal such
findings of the city council, concurred in by a circuit [court], unless they are
without evidentiary support or against the clear preponderance of the evidence.").
AFFIRMED.
SHORT, GEATHERS, and MCDONALD, JJ., concur.