Tourism Expenditure v. City of Myrtle Beach ( 2011 )

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

Tourism Expenditure Review Committee, Appellant/Respondent,

v.

City of Myrtle Beach, Respondent/Appellant.

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Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge

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Unpublished Opinion No.  2011-UP-464
Heard February 9, 2011 – Filed October 21, 2011

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APPEAL DISMISSED

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John M.S. Hoefer, Tracey C. Green, and Andrew J. MacLeod, of Columbia, for Appellant/Respondent.

Michael Warner Battle, of Conway, for Respondent/Appellant.

PER CURIAM: This cross-appeal arises out of the Tourism Expenditure Review Committee (TERC) and the City of Myrtle Beach's (the City's) dispute over the disbursement of funds for "tourism-related expenditures" for two events under section 6-4-10(4) of the South Carolina Code (2004).  We dismiss this appeal as moot.

FACTS/PROCEDURAL HISTORY

Section 12-36-920(A) of the South Carolina Code (Supp. 2010) imposes a seven percent sales tax on "the rental or charges for any rooms, campground spaces, lodgings, or sleeping accommodations furnished to transients by any hotel, inn, tourist court, tourist camp, motel, campground, residence, or any place in which rooms, lodgings, or sleeping accommodations are furnished to transients for a consideration."  Of that tax, two percent is a local accommodations tax that must be allocated to cities and counties pursuant to statute.  S.C. Code Ann. § 12-36-2630(3) (Supp. 2010).  In cities or counties collecting more than $50,000 from the local accommodations tax, after certain amounts are allocated, "[t]he remaining balance plus earned interest received by a municipality or county must be allocated to a special fund and used for tourism-related expenditures."  S.C. Code Ann. § 6-4-10 (2004 & Supp. 2010).  Section 6-4-35(B)(1)(a) of the South Carolina Code (2004) provides TERC "shall serve as the oversight authority on all questionable tourism-related expenditures and to that end, all reports filed pursuant to [s]ection 6-4-25(D)(3) [of the South Carolina Code (2004)] must be forwarded to the committee for review to determine if they are in compliance with this chapter."

In 2003, the City approved $20,000 in tax fund disbursements for the Myrtle Beach Fireworks/Beach Bang 2003 (Fireworks Displays), which were put on by for-profit entities including hotels, motels, restaurants, bars, and merchants.  Of that amount, $321.03 was used to advertise the displays, although the application had contemplated $2,000 towards advertising.  The remaining amount was used towards the $68,200 cost of putting on the displays.  The same year, the City also approved $10,000 for the 4th Annual Myrtle Beach Fall Rally (Fall Rally), which the Myrtle Beach Tavern Owners Association and the Doghouse Bar, also for-profit entities, put on to attract motorcycle enthusiasts to a biker rally in the Myrtle Beach area.  The City's disbursement was used to advertise and promote the rally on billboards, on websites, and in motorcycle enthusiast publications.  The Fall Rally doubled its attendance in 2003 from the previous year.

In 2004, TERC informed the City it had notified the South Carolina Treasurer's Office (Treasurer's Office) to withhold $30,000 from the City's future accommodation tax disbursements.  The notice stated the two disbursements were not appropriate because the recipients were for-profit entities.  The City contested that decision to the administrative law court (ALC), which found the Fireworks Displays were not tourism related based on the amount spent on advertising the event and that TERC had properly decided $20,000 should be withheld.  The ALC found the primary use of the disbursement was to entertain tourists already in the Myrtle Beach area.  Additionally, the ALC found the Fall Rally complied with section 6-4-10 and thus TERC had incorrectly determined $10,000 should be withheld.  Both the City and TERC appealed to the circuit court, which affirmed the ALC's order. 

The circuit court noted in its order that after the ALC's decision, the General Assembly enacted an act requiring accommodations tax revenues withheld by the Treasurer's Office prior to July 1, 2006, be returned to the entity from which they were withheld. The circuit court found that action by the legislature did not moot the appeal because TERC still had the authority to certify the withholding of funds.  The court found the decision satisfies at least one, if not all three, of the recognized exceptions to mootness.  (citing Douan v. Charleston Cnty. Council, 369 S.C. 271, 277 n.1, 631 S.E.2d 544, 547 n.1 (Ct. App. 2006), rev'd on other grounds, 373 S.C. 384, 645 S.E.2d 241 (2007) ("In civil cases, there are three exceptions to the mootness doctrine: (1) an appellate court can retain jurisdiction if the issue is capable of repetition yet evading review; (2) an appellate court can decide cases of urgency to establish a rule for future conduct in matters of important public interest; and (3) if the decision by the trial court can affect future events or have collateral consequences to the parties, the appellate court can take jurisdiction.")).[1]  Both parties appeal.    

STANDARD OF REVIEW

The ALC presided as the finder of fact at the contested hearing.  S.C. Code Ann. § 1-23-600(B) (2005).  The circuit court's appellate review of the ALC's decision was governed by section 1-23-610(D) of the South Carolina Code (Supp. 2005), which at the time provided:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.  The court may affirm the decision of the agency or remand the case for further proceedings.  The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

This section also governs our review of the circuit court's decision.  S.C. Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 363 S.C. 67, 73, 610 S.E.2d 482, 485 (2005).

LAW/ANALYSIS

The City contends the circuit court erred in affirming the ALC's interpretation of the accommodation tax act to mean "tourism-related expenditures" were determined by the amount of money spent on advertising and finding the $20,000 disbursement was properly withheld.  TERC argues the circuit court erred in affirming the ALC's ruling that a disbursement of $10,000 in accommodations tax revenue by the City was compliant with sections 6-4-5 to -35 of the South Carolina Code when the purpose of the disbursement was not the promotion of tourism as required by section 6-4-10(4).  TERC also maintains the circuit court erred in affirming the ALC's ruling that two disbursements of accommodations tax revenue totaling $30,000 by the City to "for-profit" entities were compliant with sections 6-4-5 to -35. TERC alleges the statute is ambiguous and the ALC improperly failed to defer to the TERC's interpretation of the statute as precluding such disbursements because they do not promote tourism as required by section 6-4-10(4).  We find these issues to be moot.

An appellate court will not pass judgment on moot and academic questions or make an adjudication when no actual controversy remains.  Linda Mc Co. v. Shore, 390 S.C. 543, 557, 703 S.E.2d 499, 506 (2010) (quoting Curtis v. State, 345 S.C. 557, 567, 549 S.E.2d 591, 596 (2001)); see also Sloan v. Friends of the Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474, 477 (2006) ("Generally, this Court only considers cases presenting a justiciable controversy.").  A moot case results when "'a judgment rendered by the court will have no practical legal effect upon an existing controversy because an intervening event renders any grant of effectual relief impossible for the reviewing court.'"  Ex parte Doe, 393 S.C. 147, ___, 711 S.E.2d 892, 894 (2011) (quoting Friends of the Hunley, 369 S.C. at 26, 630 S.E.2d at 477); see also Friends of the Hunley, 369 S.C. at 25, 630 S.E.2d at 477 ("A justiciable controversy exists when there is a real and substantial controversy which is appropriate for judicial determination, as distinguished from a dispute that is contingent, hypothetical, or abstract.").

However, a court can address a moot issue in three situations.  Sloan v. Greenville Cnty., 380 S.C. 528, 535, 670 S.E.2d 663, 667 (Ct. App. 2009).  "First, if the issue raised is capable of repetition but generally will evade review, the appellate court can take jurisdiction."  Id.  "In evaluating whether a moot issue is capable of repetition, yet evading review the Court does not require that the complaining party be subject to the action again."  Friends of the Hunley, 369 S.C. at 27, 630 S.E.2d at 478.  However, the action must actually evade review.  Id.  All actions capable of repetition do not necessarily evade review.  See Seabrook v. City of Folly Beach, 337 S.C. 304, 307, 523 S.E.2d 462, 463 (1999).

"'Second, an appellate court may decide questions of imperative and manifest urgency to establish a rule for future conduct in matters of important public interest.'"  Greenville Cnty., 380 S.C. at 535, 670 S.E.2d at 667 (quoting Curtis, 345 S.C. at 568, 549 S.E.2d at 596) (emphasis added by court).  "Application of the public interest exception requires the question at issue to be (1) of 'public importance,' and (2) of 'imperative and manifest urgency.'" Id.  "This evaluation must be made based on the facts of each individual situation."  Friends of the Hunley, 369 S.C. at 27, 630 S.E.2d at 478.

"Third, 'if a decision by the trial court may affect future events, or have collateral consequences for the parties, an appeal from that decision is not moot, even though the appellate court cannot give effective relief in the present case.'"  Greenville Cnty., 380 S.C. at 535, 670 S.E.2d at 667 (quoting Curtis, 345 S.C. at 568, 549 S.E.2d at 596).  "The utilization of an exception under the mootness doctrine is flexible and discretionary . . . , not a mechanical rule that is automatically invoked." Id.

As part of its budget bill for fiscal year 2006-2007, the General Assembly required the accommodation tax revenues withheld by the Treasurer's Office pursuant to section 6-4-35 prior to July 1, 2006, be returned to the entity from which they had been withheld.  Act No. 397, 2006 S.C. Acts 492, Part 1B, Section 60.12. Thus, the $30,000 in accommodations tax proceeds certified by TERC to the Treasurer's Office to be withheld from the City were not ultimately withheld.  Therefore, this issue is moot.

The utilization of an exception under the mootness doctrine is discretionary, and this case meets none of the recognized exceptions.  First, this situation is not capable of repetition yet evading review.  Although it is capable of repetition, we have no reason to believe the legislature will refund the money collected in the future.  Consequently, should the City submit requests for funds for activities TERC finds does not meet the requirements of the statute, TERC can withhold the funds and the parties can litigate the interpretation of the statute then.  Second, this is also not a situation of imperative and manifest urgency to establish a rule for future conduct in matters of important public interest.  Finally, this is not a situation in which a decision by the trial court will affect future events, or have collateral consequences for the parties.  Thus, this situation does not meet any of the exceptions to the application of the mootness doctrine.  Accordingly, we dismiss this appeal as moot.

APPEAL DISMISSED.

FEW, C.J., KONDUROS, J., and CURETON, A.J., concur.

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[1] Neither party raises mootness as an issue on appeal.