South Carolina Lawyers Weekly June 20, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 13 ■

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Columbia attorney nominated for federal post ■ BY TERI SAYLOR

a waste management system in accordance with state and federal law so as to prevent discharges to the environment.

Blackmon and the association challenged the permits before the ALC, arguing that Broilers was required to seek National Pollutant Discharge Elimination System (NPDES) permits as well.

Broilers moved for partial summary judgment, arguing that they didn’t need NPDES permits because the permits issued by the Department prohibited the discharge of pollutants into the wa-

President Joe Biden has nominated Columbia attorney Adair Ford Boroughs as the next U.S. Attorney for the District of South Carolina, pending confirmation by the U.S. Senate.

For Boroughs, her service would create a full-circle moment in her career.

She was a trial attorney in the Tax Division of the United States Department of Justice from 2007 to 2013 and went on to serve as a law clerk for U.S. Adair Ford District Judge Boroughs Richard Gergel from 2013 to 2017.

“The Department of Justice is where I started my legal career, and should I be confirmed, it will be a professional homecoming that I hold dear,” she said in a statement.

Boroughs, 41, a founding partner at Boroughs Bryant, added that she is looking forward to the confirmation process.

A native of Williston, Boroughs excelled as a student at Furman University where she was a Herman Law Scholar and a Harry S. Truman Scholar and graduated summa cum laude with a bachelor’s degree in math. She went on to earn her law degree from Stanford University, an experience that sparked her attraction to public interest law. She was president of the Stanford Public Interest Foundation, was a Senior Public Interest Fellow and one of two recipients of the inaugural Sandra Day O’Connor Award for public

See CAFO Page 4 ►

See Nomination Page 4 ►

The South Carolina Court of Appeals has reversed a prior order of the Administrative Law Court regarding agricultural permits in South Carolina. Pictured is a processing plant in California. AP Photo/Marcio Jose Sanchez

DOWN ON THE FARM Court of Appeals reverses issuance of ag permits ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires Applicants for state agricultural permits were required to apply for a federal permit, despite the Department of Health and Environmental Control’s issuance of a “no discharge” permit, a panel of the South Carolina Court of Appeals has ruled, reversing an order of the Administrative Law Court (ALC) affirming the issuance of state permits.

In 2016, David Coggins Broilers, Heath Coggins Broilers and Jim Young Broilers collectively submitted proposals to construct

18 broiler houses on a 255-acre tract located in the Little River watershed in the Mountville area of Laurens County.

Charles S. Blackmon and several other neighboring property owners formed an unincorporated association called “South Carolinians for Responsible Agricultural Practices” to challenge the Broilers’ proposed facilities.

The Department issued Bureau of Water Agricultural Permits to all Broilers in November and December 2016. Each permit provided for the operation of “nodischarge” facilities and required Broilers to operate and maintain

Unreasonable restraint: Court strikes down political ad ban ■ BY NICK HURSTON A public transit system had a legitimate interest in avoiding some politically charged advertisements, but its lack of a formal definition of “political” or written guidelines clarifying how its prohibition on political ads was to be applied doomed its policy as unconstitutional, the 4th U.S. Circuit Court of Appeals has held.

Judge Julius N. Richardson agreed with the Eastern District of Virginia that Greater Richmond Transit Company, or GRTC, was a state actor and that its ban on political ads was “not ‘capable of reasoned application’ and [was] therefore unconstitu-

tionally unreasonable.”

But the judge noted the district court erred in denying facial relief.

“Even if another public-transit political advertising ban may be constitutional, this ban is incapable of reasoned, constitutional application in all circumstances,” he explained.

Chief Judge Roger L. Gregory and Judge Paul V. Niemeyer joined Richardson in the May 20 opinion in White Coat Waste Project v. Greater Richmond Transit Company (VLW 022-2-124).

GRTC’s policy After GRTC was incorporated in 1973, the city of Richmond retained all shares of GRTC and author-

ity to appoint all of its board members.

GRTC sells ad space on its busses and advertisers must comply with GRTC’s content policy which prohibits “all political ads” with the stated “intent not to allow any of its transit vehicles or property to become a public forum for dissemination, debate, or discussion of public issues.”

The policy, however, does not define what could constitute “political ads” or “public issues.”

According to GRTC, an ad will be deemed political if it is “not viewpoint neutral.”

GRTC also prohibits ads from “political action See Restraint Page 6 ►

INSIDE VERDICTS & SETTLEMENTS

NEWS

NEWS

Defendants to pay $4M in dram shop case.

More pain at the pump coming for SC motorists.

Court rules face-to-face tip not reasonable suspicion.

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2 / NEWS

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Buy American Act changes pinch SC suppliers ■ BY MOLLY HULSEY mhulsey@scbiznews.com Some South Carolina-based suppliers are feeling a burst of demand as domestic content percentages for materials used in public projects are set to go into effect in October.

The Buy American Act – not to be confused with the Reagan-era Buy America Act – was first created in 1933 to give preference to domestic manufacturers.

The bill has evolved over the years, but in January 2021, the Biden Administration passed an executive order sparking “the most robust changes to the implementation of the Buy American Act in almost 70 years,” according to a White House news release.

The order raised the percentage of domestic content required in public projects from today’s 55 percent to 60 percent starting Oct. 22, according to a document published

by Federal Register.

By 2024, the required percentage will climb to 65 percent, and in 2029, to 75 percent. The initial increase to 60 percent will occur several months from publication of the final rule, according to the Defense Department, General Services Administration and National Aeronautics and Space Administration document.

Andrew McAllister, partner with Washington D.C-based Holland & Knight, shared in a webinar that materials “manufactured in the United States” is not defined in the law, but that it implies a step beyond assembly.

“Then the second piece of that test is that the cost of the components from the U.S. must exceed a certain threshold of the cost of all components,” McAllister said, adding that iron and steel products undergo more strict standards.

Under the new ruling, foreign iron and steel must make up less than 5 percent of the total cost of components purchased.

“It doesn’t mean you can never offer a foreign product,” he said.

“It’s more so you’re going to be penalized for providing that foreign product.”

Bringing it all home The Buy American Act may of-

ten come up in conversations about

rics.

supply chain disruptions, and be-

So, when a federal customer came to CBT Medical with a request for medical supplies and the Buy American Act requirements in hand nine month ago, the OEM supplier was poised for action.

Now, about 67 percent of CBT products go toward facilities used by this federal customer, he said.

It hasn’t always been easy to find domestic suppliers – especially for plastics, textiles and nitrile rubber components– but Shirley said they’ve uncovered many U.S.-based suppliers able to supply CBT’s custom surgical trays.

Teasing out impacts Jarrett Martin, president of MarMac Industries, an industrial wire supplier for concrete reinforcement in McBee, said he has witnessed a positive uptick in U.S. suppliers used by the Florida Department of Transportation.

But, at this time, he said it is hard to pinpoint the booming demand for Mar-Mac products to the Buy American Act alone. More than 90 percent of his business comes from outside the Palmetto State.

“It has been difficult to tease out impacts to our business just with all the other noise going on in the

fore that, the pandemic, and before that, the steel tariffs from Section 232 by the Trump administration,” Martin told SC Biz News. “We expect a positive impact.”

Section 232 placed a 25 percent ad valorem tariff on steel imports from all countries except Canada and Mexico as a national security measure, according to the Executive Office proclamation.

Turmoil in the ocean freight market, along with ongoing lockdown in China due to COVID-19, forced many contractors to reassess of their suppliers before the Oct. 22 requirements come into place.

“Essentially, we saw demand snap back much more quickly than we expected after the spring of 2020, and nobody was ready for it,” Martin said. “Everybody in the supply chain had done the same thing.

They had moved to conserve cash and take inventory down, expecting a big recession.”

The rise in ocean freight prices and the uncertainty of import times has proved kind to Mar-Mac Industries so far.

“As a domestic manufacturer, I’ve been well positioned to take advantage of that,” Martin said.

File photo

building materials and construction products, but it also dictates procurement for other forms of federal infrastructure as well – for example, procedure trays used in taxfunded operating rooms.

COVID-19 wreaked havoc on medical product supply chains Greenville’s CPT Medical depended on for their company’s specimen collection supplies in 2020.

“A lot of it was not just made in China, but one of the largest specimen collection manufacturers COPAN is in Italy, and BD is in Germany,” said Austin Shirley, vice president of commercial operations at CBT Medical’s holding company Diversified Medical Healthcare. “So there was very little U.S. production.”

So, out of necessity, Diversified Medical Healthcare certified its viral transport medium for distribution and launched production.

Being one of few domestic manufacturers, Shirley said they couldn’t fill orders fast enough.

An ongoing shortage of polypropylene wrap used to sterilize surgical instruments later prompted Diversified Medical Healthcare to seek out U.S. partners Hanes Fab-

LAWYERS IN THE NEWS Hall Booth Smith, P.C. (HBS) has welcomed Lauren N. Vriesinga as Of Counsel to its growing office in Charleston, South Carolina.

Vriesinga concentrates her practice in the health care industry, representing a variety of health care providers and professionals in all phases of litigation related to both general and professional liability claims, according to an HBS news release. She also practices in the areas of premises liability, transportation, insurance coverage, and general liability matters.

Prior to joining HBS, Vriesinga worked for nearly a decade in civil and administrative litigation in both the public and private sector, the release stateds. Most recently, she worked as a partner at a well-respected regional defense firm, handling cases from inception through investigation and all aspects of litigation, including trial.

Lauren N. Vriesinga

She has successfully defended a wide variety of injury claims, including catastrophic injuries, orthopedic injuries, brain trauma, spinal injuries, and psychological injury.

Outside of the office, Vriesinga is engaged in the Charleston County Bar Association, the South Carolina Defense Trial Attorneys Association, the South Carolina Women Lawyers Association, and the South Carolina Bar Young Lawyers Division.

Vriesinga earned a J.D. degree, cum laude, from St. Thomas University School of Law and her B.A. degree, magna cum laude, from Loyola Marymount University.

“We are excited to welcome Lauren to the HBS family. She is an invaluable addition to our office as we expand to meet the needs of our clients,” said Alex Booth, managing partner at Hall Booth Smith, said in the release.

NEWS / 3

S O U T H C A R O L I N A L A W Y E R S W E E K LY I June 20, 2022

Face-to-face tip not reasonable suspicion ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com Even a face-to-face tip to law enforcement does not create reasonable suspicion for a “knock and talk” where officers fail to conduct any type of independent investigation to buttress the tip, the South Carolina Court of Appeals has unanimously ruled.

In the June 1 opinion, the court found that while the tip was not purely anonymous, officers and courts must ensure that tips of criminal activity possess sufficient indicia of reliability.

“An officer’s impression that an individual is engaged in criminal activity, without confirmation, does not amount to reasonable suspicion,” Chief Judge H. Bruce Williams wrote.

“An officer’s wealth of experience will not overcome a complete absence of articulable facts.”

Judges Aphrodite Konduras and Jerry Vinson Jr. concurred in the decision.

depositphotos

In 2017, Deputy Andrew Hall of the Laurens County Sheriff’s Office was approached at a gas station by an unknown man who told him that defendant Sylvester Ferguson was “cooking dope” in an apartment building on Whitmire Highway in Joanna.

Hall did not know the tipster, did not get his name or contact information, or ask questions to verify the tip.

Hall and narcotics investigator Charles Nations went to the apartment building they assumed the tipster was referring to, but before they could knock, Ferguson’s roommate opened the door to leave. As the man went inside to get Ferguson, officers stepped inside, as well.

Both men denied illegal activity.

The man was hesitant but agreed to allow officers to walk through the apartment. Based on a yellow substance found in the bathroom and a residue-covered marijuana pipe, officers obtained a search warrant. Prior to obtaining the warrant, officers executed a Terry frisk on Ferguson and discovered a vial containing white powder they assumed to be cocaine or methamphetamine. The search warrant revealed several ingredients used to manufacture methamphetamine. Both men were arrested.

be suppressed because the officers violated his right to privacy under the state’s constitution. The officers needed reasonable suspicion that he was manufacturing methamphetamine before they could approach his apartment and conduct a knock and talk, Ferguson asserted.

Prosecutors argued that a knock and talk never occurred because the roommate opened the door before they could knock and that a “fresh” tip from a face-to-face encounter sufficiently establishes reasonable suspicion when coupled with the officers’ knowledge of Ferguson’s connection with drug production (Hall knew of Ferguson from encounters at the detention center and Nations had previously observed officers arresting Ferguson) and the apartment’s location in a high-traffic drug area.

Circuit Court Judge Frank Addy Jr. ruled that the evidence was inadmissible, determining that State v.

Counts requires reasonable suspicion which is absent in this case. The trial court found that the unknown tipster provided no indication of reliability, that the evidence found at the apartment did not establish an active meth lab, and that neither officer attempted to independently corroborate the tip. When the hearing concluded, prosecutors dismissed the case.

Something to believe in

Can’t trust just anyone

Here’s a tip

Ferguson argued at a pretrial hearing that all evidence should

On appeal, the state argued that the trial court erred in suppressing

the evidence under Article I of the South Carolina Constitution, which prohibits “unreasonable invasions of privacy.”

The court noted that Counts, a 2013 South Carolina Supreme Court decision, established that “law enforcement must have reasonable suspicion of illegal activity at a targeted residence prior to approaching the residence and knocking on the door.”

Unfortunately for the defendant in that case, the court found that such reasonable suspicion existed. After receiving an anonymous tip, the officer was provided with detailed information about the defendant, including his name, aliases, his phone number, and information about his vehicle and where alleged drug deals were happening. Officers corroborated the tip by, among other methods, reviewing the defendant’s criminal record, which included prior drug offenses.

The court also found instructive its 2021 decision in State v. Boston, which also found reasonable suspicion for a knock and talk. In Boston, officers patrolling an apartment community known for drug activity knocked on the door of an individual whom they knew used narcotics after seeing two men they knew were involved in drug activity enter the apartment. After the resident allowed the officers to enter the apartment, they found the two men cooking crack cocaine.

With it established that law en-

forcement must have reasonable suspicion before approaching a residence to conduct a knock and talk or a warrantless search, the question in the instant case became whether the facts showed that the officers had such suspicion before walking up to Ferguson’s apartment.

The appeals court believes they did not.

Hall failed to ask anything substantive of the tipster regarding Ferguson or the allegations, the court found, and did not bother to conduct surveillance, research Ferguson’s record, or check the real-time logging and compliance system that tracks sales of over-the-counter medications that are necessary ingredients of methamphetamine.

“Here, apart from the informant’s limited information, Deputy Hall and Investigator Nations had no reason to suspect Ferguson of being inside the apartment, much less manufacturing methamphetamine,” Vinson wrote.

Senior Assistant Attorney General Mark Farthing of Columbia and Solicitor David Stumbo of Greenwood represented the state. Appellate Defender David Alexander of Columbia represented Ferguson.

Alexander declined to comment on the pending litigation.

The 10-page decision is State v.

Ferguson. (Lawyers Weekly No. 011032-22). The full text of the opinion is available online at sclawyersweekly. com.

Insurance defense law firm expands in state ■ STAFF REPORT Anastopoulo Law Firm has expanded its presence in South Carolina.

The addition of this brick and mortar office in Lexington is the firm’s second office in the Midlands (in addition to Columbia), totaling seven offices in South Carolina, and 10 regionally, according to a news release from Anastopoulo.

The new office is located at 111 E. Main St., and will be staffed by attorneys who are joining the firm from regional insurance defense firms, the release stated. The firm is currently executing a rapid growth plan that will see more offices open across the regionin the coming months and more

Photo provided by Anastopoulo Law Firm

new hires.

“We couldn’t be more excited about our continued expansion. With our new office in Lexington, it will allow us to serve more people across the midlands and all of South Carolina,” Roy T. Willey IV, partner at the firm, said in the release. We are humbled and encouraged by the tremendous trust our clients place in our results oriented approach to handling their cases that permits our continued growth.”

The Anastopoulo Law Firm has offices in Downtown Charleston, North Charleston, Columbia, Florence, Greenville, Myrtle Beach and now Lexington in South Carolina; Atlanta, Georgia, and Charlotte and Lumberton, North Carolina, according to the release.

4 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 20, 2022

CAFO / Court of Appeals reverses issuance of ag permits C o nt inu e d f r o m 1 ►

ters of the state.

The ALC granted the motion, concluding that an NPDES permit was not necessary and the Department was not required to determine whether the facilities had no potential to discharge.

But the court disagreed, reversing the decision to uphold the issuance of the permits.

“The Department’s conclusion that a ‘no discharge’ permit – which prohibits a facility from discharging pollutants into the waters of the state – is the equivalent of a determination under regulation 61-9.122.23(f) that the facility has ‘no potential to discharge’ is manifestly contrary to the language of the regulation, which requires the Department to make a case-specific evaluation,” Judge James E. Lockemy wrote.

Potential to discharge pollutants

Lockemy began the analysis with regulation 61-9.122.1(b)(1), which defines the scope of the NPDES permit requirement and provides it “requires permits for the discharge of ‘pollutants’ from any ‘point source’ into ‘waters of the State.’” The regulations further require that concentrated animal feeding operations (CAFO) are considered a point source that require “NPDES permits for discharges or potential discharges.”

Pursuant to paragraph (d), a CAFO owner or operator “must seek coverage under an NPDES permit” unless it has received from the Department notification of a determination that it has no potential to discharge manure, litter or process wastewater.

And regulation 61-9.122.23(f) (1) states that “the Department must consider the potential for discharges from both the production area and any land application areas … For purposes of this section, the term ‘no potential to discharge’ means that there is no potential for any CAFO manure, litter, or process wastewater to be added to wa-

ters of the State under any circumstance or climatic condition.”

Lockemy agreed with Blackmon and the association that the plain language of the regulations was contrary to the Department’s interpretation that its issuance of a “no discharge” permit constituted an inherent determination that the facilities had no potential to discharge.

“The Department’s issuance of a no-discharge permit did not satisfy this requirement because the Department did not specifically consider whether there was no potential for any CAFO manure, litter, or process wastewater from Broilers’ proposed facilities to be added to the water of the State ‘under any circumstance or climactic condition,’” he wrote. “Simply because the no-discharge permit prohibited Broilers from discharging pollutants into the waters of the state did not mean they had no potential to discharge pollutants within the meaning of regulation 61-9.

“Rather, the Department was required to evaluate Broilers’ proposed facilities to determine whether there was any potential to discharge. Thus, we conclude the ALC erred in deferring to the Department’s interpretation of regulation 61-9 and in finding Broilers had ‘no potential to discharge’ because the Department issued them no-discharge permits.”

Lockemy acknowledged that regulation 61-9 provides that even when the Department determines there is no potential to discharge, Broilers would still be in violation of the regulation if they in fact contributed pollutants to the waters of the state; while regulation 61-43 prohibits discharges, it also provides the Department with authority to enforce compliance with the no-discharge permit.

“Nevertheless, none of these measures equal a finding by the Department that Broilers had no potential to discharge, which our regulations require to excuse a CAFO from obtaining an NPDES permit,” he said.

Consideration needed for additional requirements, setbacks

Lockemy also agreed with Blackmon and the association that the ALC erred by accepting the Department’s interpretation of certain provisions when it concluded that no additional requirements or setbacks were needed because agricultural facilities are not considered as contributors to Total Maximum Daily Load (TMDL) for the Little River, which has impaired water quality due to excessive levels of fecal bacteria.

Although the regulations require the Department to evaluate sensitive areas – including areas on the impaired water bodies list, like the Little River – to determine if more stringent requirements or setbacks are needed, it “bypassed this casespecific evaluation by concluding agricultural facilities are not considered to contribute to the TMDL,” Lockemy wrote.

“This interpretation was arbitrary because the regulations required the Department to evaluate specific factors to determine whether additional setbacks were required or additional or more stringent requirements were needed. We therefore find the ALC erred in deferring to the Department’s interpretation.”

He reversed the ALC’s decision to uphold the Department’s issuance of the permits to the Broilers and remanded to the Department for further evaluation pursuant to regulations 61-9 and 61-43.

Columbia attorney Robert Guild, who represented Blackmon and the association, did not respond to a request for comment.

Neither did Mitchell Willoughby of Willoughby & Hoefer in Columbia, who represented the Broilers, nor Michael Smoak Traynham of Nexsen Pruet in Columbia, who represented the Department.

The 16-page decision is Blackmon v. South Carolina Department of Health and Environmental Control (Lawyers Weekly No. 011028-22, 16 pp). The full text of the opinion is available online at sclawyersweekly.com.

NOMINATION / Columbia attorney nominated for federal post C o nt inu e d f r o m 1 ►

service.

In 2017, Boroughs joined Charleston Legal Access, a sliding scale non-profit law firm, where she served as executive director alongside Sally Newman, the organization’s late founder.

“Under Adair’s leadership, CLA went from a shoestring operation to a substantial organization that has provided legal services to hundreds of South Carolinian who otherwise would not have had access to a lawyer,” said Patrick Wooten, a principal at Duffy & Young of Charleston and a longtime member of the CLA Board of Directors.

Boroughs went on to launch a bid for Congress in 2020, running as a Democratic challenger against incumbent U.S. Rep. Joe Wilson, RSpringdale, who defeated her in the election.

Then Boroughs and fellow attorney, Chris Bryant started the Boroughs Bryant law firm, whose

mission is to further the public’s interest by assisting other attorneys strategize, helping small businesses and nonprofit organizations with compliance issues, and assisting businesses and individuals with Freedom of Information requests, and working with political candidates.

If confirmed, Boroughs will replace U.S. Attorney Corey Ellis, one of two interim attorneys to fill that seat after President Donald Trump nominee, former state Rep. Peter McCoy stepped down in 2021 when Biden took office.

The United States Attorney for South Carolina is the chief federal law enforcement officer in the state, representing the interests of the United States in civil, criminal, and appellate litigation.

Some of the higher profile cases before the U.S. Attorney’s Office include the trials of officials in the V.C. Summer Nuclear Station charged with making false statements to FBI agents during an in-

vestigation of the failed plant and multiple lawsuits associated with the project. Other cases are the investigation into financial crimes by suspended attorney Alex Murdaugh and his relationship with Palmetto State Bank and the recent charges against Myrtle Beach Safari owner Bhagavan Mahamayavi “Doc” Antle and Andrew Jon “Omar” Sawyer in money laundering crimes involving more than $500,000.

Wooten believes she is ready to tackle those cases and others.

“She has worked for the Department of Justice in the past, and as a long-time practitioner of public interest law, I believe she will continue to serve the public interest well,” he said.

Boroughs says she is ready for the challenges ahead.

“To be able to further the Department’s work in my home state of South Carolina and to work with the incredible people at the U.S. Attorney’s Office would be a privilege and an honor,” she said in her statement.

"Helping lawyers practice better, more efficiently, and more profitably."

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 20, 2022

RESTRAINT / Appeals court strikes down political ad ban C o nt inu e d f r o m 1 ►

groups,” meaning any group that “engage[s] in a specific targeted policy advocacy that would be related to their one side of the political issue.”

GRTC may review a group’s website to make that determination.

The ‘political’ ad White Coat Waste Project, a nonprofit seeking to end taxpayer-funded animal experimentation, submitted an ad to GRTC that showed three dogs behind prison bars with the text, “Prisoners of Waste — McGuire VAMC: Stop Taxpayer-Funded Dog Experiments!” The group’s name appeared in small print at the bottom.

GRTC reviewed White Coat’s website, determined it was a political action group and rejected the ad. GRTC said it might be able to run the ad as a “public service advertisement” if White Coat partnered with the local government.

Partial summary judgment White Coat sued GRTC under 43 U.S.C § 1983 seeking a declaratory judgment that the policy violated the First Amendment, both facially and as applied to them.

The Eastern District found that GRTC is a state actor and their policy is unconstitutional as applied to White Coat. The court enjoined GRTC from rejecting the ad, but rejected the facial challenge and granted only partial summary judgment.

Both parties appealed.

Specific government creation Richardson cited the U.S. Supreme Court’s holding in Lebron v. Nat’l R.R. Passenger Corp. that Amtrak

The 4th U.S. Circuit Court of Appeals has agreed with a lower court regarding politically charge advertisements on public transit vehicles. depositphotos

was a “government-created and -controlled corporation” because it was created by special law for the furtherance of governmental objectives and the government retained “permanent authority to appoint a majority of the directors of that corporation.”

Richardson rejected GRTC’s arguments that a special law must actually create the corporation and lay out its unique rules. Such an interpretation, he said, “would undermine the core principle of Lebron: that the gov-

Wilkes Atkinson & Joyner, LLC Wilkes Atkinson & Joyner, LLC, is pleased to announce that Reed W. Mulbry has joined the firm, where he will practice as an Associate in WAJ’s Charleston office. Mulbry joins WAJ after serving as an Assistant Public Defender the last four years in the Charleston County Public Defender’s Office. Before that, he served as Law Clerk to S.C. Circuit Court Judge Perry Gravely.

Mulbry will work primarily in construction litigation, professional negligence defense, personal injury defense, and general civil litigation. Mulbry obtained a Bachelor of Science degree from Wofford College, and then graduated magna cum laude from the University of South Carolina School of Law, where he served on the South Carolina Law Review, and was admitted to the Order of the Wig and Robe and the Order of the Coif.

Wilkes Atkinson & Joyner, LLC, is a full-service litigation firm, which focuses on the defense of professionals and businesses in litigation and arbitration. WAJ recently moved its Charleston Office to The Jasper at 320 Broad Street, Suite 220.

ernment cannot evade the Constitution by resorting to a corporate form.”

“Created by special law,” he said, means that the government “must form the corporation under a particular grant of authority.”

Here, Richardson found the city was empowered by special law to incorporate GRTC, and they did so “not as private citizens or as ministerial approvers of a private corporation, but as agents of the state.”

‘Unreasonable means’ Since GRTC is a state actor, the permissible scope of government control over First Amendment rights depends on the nature of the government property, or forum, in question.

Unlike a traditional or a designated public forum, Richardson said ad space on GRTC busses is a nonpublic forum.

“Richmond Transit’s expressed policy is not to open its advertising space for the discussion of public issues, and paid bus advertisements are not particularly compatible with the free flow of ideas,” he explained. “Thus, as the Supreme Court and our sister circuits have concluded, transit advertising space is a nonpublic forum.”

But the government lacks complete freedom even in nonpublic forums; restrictions on speech must be reasonable and viewpoint neutral, the judge pointed out.

Reasonableness, Richardson said, is subject to “some form of so-called intermediate scrutiny, in which the government’s means and ends must both be ‘reasonable.’”

While White Coat acknowledged GRTC’s legitimate interest in avoiding some class of politically charged advertisements, the judge said “even a reasonable end must not be pursued by unreasonable means.”

Richard looked to the U.S. Supreme Court’s holding in Minn. Voters All. v. Mansky, which said that “nonpublic-forum speech restrictions must be ‘capable of reasoned application’” in order to be reasonable.

GRTC sought to ban all political ads, but has neither a formal definition of political nor written guidelines as to how the standard must be applied.

“Faced with this broad, undefined standard and the directive to keep Richmond Transit’s buses from becoming a forum to discuss ‘public issues’ (whatever that might mean),

employees have done their best to flesh out a reasonable test,” the judge wrote. “But those attempts have fallen short.”

‘Murky’ scope The judge found GRTC doesn’t rely on the plain meaning of “political,” and has consistently run ads relating to the government or politics. Though a GRTC employee said an ad is political if it isn’t “viewpoint neutral,” Richardson said that provided little clarity.

“Indeed, our need to search out alternative rationales to justify Richmond Transit’s decisions reveal that its policy, as it stands, does not provide a ‘sensible basis for distinguishing what may come in from what must stay out,’” he noted.

And even without direction on political content, GRTC may still reject an ad if they determine the advertiser is a political action group, and that rule is nowhere to be found in GRTC policy, the judge said.

“Yet that is precisely why White Coat’s advertisement was rejected.

And the precise scope of this rule is murky,” he wrote.

The judge added that, “[w]hen taken together, Richmond Transit’s vaguely defined policies and even vaguer unwritten rules make it impossible for a reasonable person to identify what violates their advertising policy and what does not.”

The heart of the problem, therefore, is that GRTC’s advertising policy “does not provide ‘objective workable standards’ by which a decision maker or would-be advertiser can distinguish ‘what may come in from what must stay out.’”

Finally, the judge said, GRTC’s current political-advertising ban is simply not capable of reasoned application. The ruling is in line with two other federal circuits.

“Today, we join our sister circuits and conclude that Richmond Transit’s policy violates the First Amendment as an unreasonable nonpublicforum speech restraint,” the opinion concluded. “We emphasize that our holding is limited to this specific policy prohibiting political advertising, and we pass no judgment on whether better-defined political-advertising prohibitions or policies allowing only commercial advertising may pass constitutional muster.”

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8 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 20, 2022

More pain at the pump coming for SC

revenues have been deposited into the state Infrastructure Maintenance Trust Fund in order to help support more than $2 billion in road and bridge work, according to figures from the South Carolina Department of Transportation, the release stated.

Motor Fuel Income Tax Credit South Carolina taxpayers can claim a credit to help offset the increase in the Motor Fuel User Fee, according to the release. The credit equals the lesser of the vehicle maintenance fees paid during the year or what was paid in the increased Motor Fuel User Fees.

Preliminary SCDOR data shows this credit has been claimed on 68,052 South Carolina returns, totaling $5,592,065 in credits issued so far this year, the release stated. Those interested in claiming this credit next year should save receipts from gas purchases and vehicle maintenance work.

For more information about the Motor Fuel Income Tax Credit Review, visit dor.sc.gov/taxcredits.

■ ​BY JASON THOMAS jthomas@scbiznews.com For the sixth consecutive year, South Carolina’s Motor Fuel User Fee — which helps support road, bridge, and infrastructure construction — will increase at the pump starting July 1, according to a news release from the South Carolina Department of Revenue.

Users will pay $0.02 more per gallon, as the fee goes from $0.26 to $0.28 per gallon.

This is the final increase approved by lawmakers as part of the South Carolina Infrastructure and Economic Development Reform Act passed by the General Assembly in 2017, which raises the fee by $0.02 each July ending this year, the release stated. The fee of $0.28 per gallon which begins in July is permanent.

From July 1, 2017, when the Motor Fuel User Fee first increased, through March 2022, approximately $898.4 million in increased Motor Fuel User Fee

depositphotos

AARP names new state director ■ BY MOLLY HULSEY mhulsey@scbiznews.com The South Carolina branch of the AARP of has hired Charmaine S. Fuller Cooper as its new state director.

Fuller Cooper brings two decades of experience in campaign strategy and management, government relations, and rural, multicultural and conservative advocacy to the table, including nine years at AARP. She served the company previously as a campaigns field manager working with her predecessor in the role and North Carolina’s advocacy director.

“For so many, financial security,

affordable health care, housing and utilities are at the forefront of issues that greatly impact quality of life as we grow older,” Cooper said in a news release. “It Charmaine S. is our duty to hear Fuller Cooper the concerns of our members and to drive the change and security they desire.”

She has also served as the executive director of the N.C. Justice for Sterilization Victims Foundation after building the foundation and its clearinghouse from the ground up to

reach victims of the forced sterilization eugenics program that operated from the 1920s through the 1970s.

Fuller Cooper’s leadership elevated the voice of victims to an international audience, ultimately resulting in $10 million in compensation for living victims, according to the release. Also, she has championed criminal justice reforms, led outreach for the American Heart Association and served on the Care 4 Carolina health care access coalition.

In addition to leading both a nonprofit and government agency, Fuller Cooper has served as a court guardian ad litem, president-elect of

the N.C. Coalition on Aging, co-chair of N.C.’s Olmstead Plan Advisory Committee and on various boards including the state United Way. Cooper graduated from North Carolina Central University before pursuing her Master of Public Administration degree at North Carolina State University.

The new state director says she looks forward to partnering with State Executive Council President Emma McGraw Myers and the staff and volunteer team in the Palmetto State.

AARP South Carolina’s previous state director, Teresa Arnold, retired in December 2021.

College of Charleston school names new dean ■ BY JASON THOMAS jthomas@scbiznews.com College of Charleston’s School of Business will soon have a new leader.

Paul H. Schwager been named dean of the school, effective July 1, 2022, according to a College of Charleston news release.

Schwager is currently the dean and W. Howard Rooks Distin-

Clarkson, Walsh & Coulter, a well-established insurance defense litigation firm with offices in Greenville, South Carolina and Charleston, South Carolina, seeks to hire a licensed South Carolina attorney for its Charleston office. We are a fast paced litigation office that specializes in the defense of individuals and businesses in all areas of civil litigation, including construction litigation, premises liability, insurance coverage and bad faith defense, and automobile negligence. The ideal candidate for this position will have 1-3 years of litigation experience.

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guished Professor in the College of Business at East Carolina University in Greenville, N.C., where he established the Copeland Diversity & Inclusion Fellows, the Cunanan Center for Professional Success and the Thomas D. Arthur Graduate School of Business, according to the release.

He also reorganized the school’s leadership structure, led a successful Association to Paul Schwager Advance Collegiate Schools of Business peer review and reorganized the Business Advisory Council with a focus on increasing diversity. Prior to being appointed dean in 2019, he served as the school’s interim dean, associate dean and acting associate dean.

“We are are honored to have Paul join the College of Charleston,” Suzanne Austin, executive vice president for academic affairs and provost, said in the release. “His

leadership and administrative accomplishments, scholarly achievements and fundraising abilities will further elevate our School of Business and the overall academic distinction of the College.”

Also at ECU, Schwager served as assistant dean and interim assistant dean for assessment, accreditation and curriculum, and as professor, associate professor, assistant professor and visiting assistant professor of management information systems in the College of Business, according to the release Prior to joining ECU, Schwager was an assistant professor of information systems at Appalachian State University’s John A. Walker College of Business from 2000 to 2003. He previously worked in the private and nonprofit sectors.

Schwager holds a doctorate in management of information technology and innovation from Auburn University, an MBA from Florida Atlantic University and a bachelor’s in business administration from Palm Beach Atlantic College.

VERDICTS & SETTLEMENTS / 9

S O U T H C A R O L I N A L A W Y E R S W E E K LY I June 20, 2022

Defendants to pay $4M in dram shop case ■ BY HEATH HAMACHER The estate of a bicyclist killed by a drunk driver has settled its wrongful death claims with two Charleston-area drinking establishments for more than $4 million, its attorneys report.

Liam Duffy and David Yarborough Jr. of Yarborough Applegate in Charleston said that on July 4, 2019, the defendant spent more than six hours drinking at two Shem Creek bars before driving off toward North Charleston around 11:15 p.m. Shortly after, at the intersection of Chuck Dawley and Bowman Road in Mount Pleasant, the defendant struck and killed the plaintiff, who was on his bicycle in the crosswalk.

Many of the case’s details, including names of the parties and defense counsel, have been withheld due to a confidentiality agreement.

Duffy said that the defendant fled but was arrested a week later. Because his blood/alcohol content could not be measured on the night of the incident, a plaintiff’s expert used math and science to determine how intoxicated the defendant likely was at the time of the crash.

“Utilizing the hours of security video footage from Bar No. 1, receipts, cocktail recipes, and other information, [he] concluded that that the defendant Drunk Driver had a BAC of approximately .20 at the time he left Bar No. 1, and

a BAC above .30 at the time of the collision at 11:30 p.m.,” Duffy wrote in an email to Lawyers Weekly.

Duffy said that opposing counsel offered several defenses to liability, including contending that the bars did not knowingly serve an intoxiLiam Duffy cated patron because the defendant did not show signs of intoxication while at the bars.

Both bars also argued that the defendant driver and the plaintiff were solely responsible for the incident, pointing to a high blood/alcohol concentration and the presence of THC revealed by the decedent’s autopsy.

David Duffy added that the defenYarborough Jr. dant had the green light and that the decedent was not wearing reflective equipment or clothing.

Duffy said that defense counsel focused on the sporadic relationship between the decedent and his adult daughter, who sued, and tried to paint the decedent as homeless and unemployed. While the man roamed, Duffy said, he traveled the country speaking out as a social activist to combat homelessness.

Duffy said that one of the pillars of the case

SETTLEMENT REPORT — DRAM SHOP/ WRONGFUL DEATH

Amount: $4,025,000 Injuries alleged: Death Case name: Withheld Court: Charleston County Circuit Court Date of settlement: May 2022 Most helpful experts: Kendrick Richardson (accident reconstruction), David Eagerton (toxicology), and Amanda Salas (forensic psychiatry) Attorneys for plaintiff: Liam Duffy and David Yarborough Jr. of Yarborough Applegate in Charleston Attorney(s) for defendant: Withheld regarding damages was the belief that physical proximity and frequency of contact doesn’t define the bond between father and daughter, which he described as “extremely meaningful and strong.”

“If there’s one thing we’ve all learned in the last few years, it’s that being physically remote does not mean being emotionally remote,” Duffy said, “Our client’s relationship with her father — and the loss she felt — embodied that.”

Send us your Verdicts & Settlements/ Online at https://sclawyersweekly.com/submit-verdicts-settlements/

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10 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 20, 2022

Poll: Most small businesses support LGBT+ inclusion ■ BY JASON THOMAS jthomas@scbiznews.com Most small business owners believe it is important to support the LGBTQ+ community and take action to ensure inclusion, according to a new poll by the U.S. Chamber of Commerce and MetLife.

More than 8 in 10 small business owners (86%) say that it is important to provide an inclusive culture for customers and guests, according to a U.S. Chamber of Commerce news releaes. Two in 3 (67%) say it is important to make a public statement in support of equality and fairness for members of the LGBTQ+ community.

“Employing nearly half of the nation’s workforce, small businesses are essential to fostering inclusive workplaces,” said Tom Sullivan, vice president of Small Business Policy at the U.S. Chamber of Commerce, the release. “The poll shows that small businesses care about LGBTQ+ inclusion for their employees, their customers, and their community, but they often lack the bandwidth or expertise to act. That is why the U.S. Chamber of Commerce Foundation has built an online platform that makes it easier for small business owners to access the information they need to build

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LGBTQ+ inclusive workplaces.”

The poll shows that across several actions that small businesses could take to support the LGBTQ+ community like creating inclusive advertising, having a formal workplace policy prohibiting discrimination based on LGBTQ+ status, and

donating to organizations supporting the LGBTQ+ community, most small businesses — in some cases more than three in four — feel taking action is important, the release stated.

Here are additional findings, according to the release:

• 84% of small business owners say that having employees from diverse backgrounds makes a company stronger.

• 69% say it is important to take more direct action to help such as doing business with, or investing in, an LGBTQ+ owned business.

• 77% of small business owners say it is important to have a formal workplace policy prohibiting discrimination based on LGBTQ+ status.

• 73% of small business owners say LGBTQ+ owned small businesses face more challenges than non-LGBTQ+ owned businesses.

• 69% say it is a good idea for businesses to publicly share their beliefs on LGBTQ+ rights.

• 72% of small business owners say they are okay with losing customers as a result of supporting the LGBTQ+ community.

“Ensuring employees feel included and supported is essential to building a successful business,” said Cynthia Smith, senior vice president, Regional Business at MetLife, in the release. “As one of the backbones of our economy, it is positive to see small business owners’ commitment to inclusion among their employees and customers, as well as their support of publicly sharing their beliefs on LGBTQ+ rights.”

5 legal considerations before opening a medical spa ■ BY MEGHAN RIORDAN Contributing writer Medical spas are on the rise in South Carolina. Now that we are coming out of the COVID-19 pandemic, people across the state seem ready to take the wrinkles from the last two years off their faces — and who can blame them?

So it is no surprise that we have seen an increase in the number of medical professionals looking to shift away from traditional medical and nursing services (and all the government and private insurance headaches that go along with them) toward the cash business of opening medical spas.

However, despite less rigorous regulatory requirements and a simpler payment structure, South Carolina providers looking to start medical spas and/or provide related services still have several legal issues to consider before opening for business.

If you are considering starting a medical spa business or providing related services, here are some things for you to consider: Are you licensed?

Any good health care attorney should ask you this question because the answer will guide the structure and operation of your business. If you do not have a South Carolina medical or nursing license, you should still be able to move forward with your plans, but you will need to have solid contractual relationships with South Carolina licensed providers to provide certain services such as laser treatments and Botox injections.

To avoid corporate practice of medicine concerns and ensure your proposed compensation structure complies with South Carolina law, always have your contracts with

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providers reviewed by an attorney.

If you are a South Carolina licensed physician, you may want to consider how much time you intend to spend onsite at the medical spa — do you want to be there every day, a few days a week, a few days a month? The answer to this question will influence the providers you hire and the services you provide. If you do not plan to be at the spa every day, you may consider hiring a nurse practitioner to provide services and supervise other staff.

If you are South Carolina licensed nurse or nurse practitioner, you will need to develop a contractual and supervisory relationship with a South Carolina licensed physician in order to properly operate your medical spa. Unless you

have a physician onsite, you may not be able to provide all services.

If you want to start a business with more than one type of licensed professional, you will need to carefully consider the structure and organization so as not to run afoul of South Carolina law.

What services will you provide?

Under South Carolina law, whether you need direct or indirect physician or nurse practitioner oversight depends on the type of services you are providing.

If you are a registered nurse, you will need direct (onsite supervision) from a nurse practitioner or a physician to perform Botox injections and laser treatments. If you want to provide cutaneous laser treatments, you will need a physician to examine your patients be-

fore you provide the treatments.

If you want to perform micropigmentation, you will need to have a physician onsite to provide direct supervision. If you want to provide facials, you will need a licensed esthetician.

Regardless of what services you provide, you will want to ensure you and your staff have the appropriate training to provide the services and have proper protocols and patient consents in place.

Other items to consider: Will you use an electronic medical record system? If so, you will want to ensure that your medical spa is HIPAA compliant.

Will your medical spa be mobile, or will you have a physical location? If mobile, you will want to consider appropriate product storage and make sure your insurance covers travel. If in a physical location, it’s always a good idea to have your lawyer review your lease agreement and help you obtain any necessary business licenses.

Have you developed a logo or other proprietary marks you want to protect? If so, you may want to consult an intellectual property lawyer.

Clearly, there are a lot of options for how to operate a medical spa.

The goals of most medical spa entrepreneurs can be accomplished with careful planning, a good understanding of the rules of the road and, of course, good contracts.

Meghan Riordan is a shareholder in Haynsworth Sinkler Boyd’s Greenville office. Her practice focuses on providing advice to health care providers and assisting clients with general health care-related business and operational issues, including organizational documents, employment and service contracts, and provider policies.

OPINION DIGESTS / 11

S O U T H C A R O L I N A L A W Y E R S W E E K LY I June 20, 2022

Opinions Criminal Practice Search & Seizure – Invasion of Privacy – Uncorroborated Anonymous Tip A deputy sheriff received an anonymous tip that defendant was “cooking dope” in an apartment on Whitmire highway in Joanna. Although the tip was face-to-face, the deputy did not know the tipster, asked no follow-up questions, and did not corroborate any details before conducting a knock and talk at the apartment. Under S.C. Const. art. 1, § 10, the deputy lacked reasonable suspicion to conduct the knock and talk.

We affirm the circuit court’s grant of defendant’s motion to suppress.

The South Carolina constitution protects citizens from unreasonable invasions of privacy. Law enforcement must have reasonable suspicion of illegal activity before approaching the targeted residence and conducting the “knock and talk” investigative technique.

The tip the deputy received lacked any indicia of accuracy or credibility. The deputy did not receive or solicit any information from the tipster that would further indicate defendant was manufacturing methamphetamine.

For example, the deputy did not ask if defendant lived at the apartment or if he drove a specific car that officers could identify and observe at the apartment; he did not ask about potential sales defendant might make in the future; he did not ask for defendant’s phone number or a description of what defendant was wearing; he did not ask if he could smell any scents as-

sociated with methamphetamine production; and, most importantly, he did not ask how the tipster knew defendant or that defendant was “cooking dope” at the apartment.

Before approaching the apartment, the deputy was joined by a narcotics investigator. Neither conducted any form of independent investigation to buttress the tip— they did not conduct surveillance, research defendant’s criminal record, or check the National Precursor Log Exchange.

While courts generally find faceto-face tips sufficiently reliable due to an officer’s ability to judge the tipster’s credibility and demeanor, additional facts that allow an officer to evaluate the veracity of the tip are usually present.

Although the officers were aware that defendant was connected to methamphetamine activity, they did not observe defendant enter the apartment or know that he was inside. While both the deputy and the investigator testified they were aware that Joanna was a drug hot spot, Joanna is an entire town and both officers testified they had never encountered defendant at the specific apartment building or made any drug-related arrests at the apartment building. Because the informant’s tip lacked any indicia of reliability and neither the deputy nor the investigator conducted independent investigations to corroborate the tip, the officers lacked the requisite reasonable suspicion to approach the apartment to conduct a knock and talk.

Affirmed.

State v. Ferguson (Lawyers Weekly No. 011-032-22, 10 pp.)

(Bruce Williams, C.J.) Appealed from Laurens County Circuit

Court (Frank Addy, J.) Alan McCrory Wilson, Mark Reynolds Farthing and Matthew Stumbo for appellant; David Alexander for respondent. S.C. App.

Arbitration Home-Buying Contract – Limitations Period – Severability Although the limitations period of the arbitration clause in the parties’ contract is one-sided and oppressive, this unconscionable provision is severable.

As modified, we affirm the circuit court’s grant of defendant’s motion to dismiss and compel arbitration.

When plaintiffs bought a home from the defendant-builder, they signed a contract that disclaimed all warranties except for a limited warranty that was available for review at the builder’s office. When plaintiffs filed suit, the circuit court granted defendant’s motion to dismiss and compel arbitration.

Since the limited warranty provision and the arbitration clause were completely separate and did not cross-reference each other, the circuit court did not err in reviewing the arbitration clause in isolation.

Plaintiffs were average purchasers of residential real estate, were not represented by independent counsel, and were not a substantial business concern to defendant such that they possessed more bargaining power than any other average homebuyer would. Therefore, evidence supports the circuit court’s finding that plaintiffs lacked a meaningful choice in entering the agreement to arbitrate.

Under S.C. Code Ann. § 15-3140, the contractual shortening of a limitations period is unenforceable. S.C. Code Ann. § 1-3-530(1) sets a three-year statute of limitations for actions upon contracts.

The final two sentences of the contract’s arbitration clause effectively shorten the statutory period to 90 days and provide an even shorter period of 30 days when the “claim, dispute[,] or matter in question” arises from either party’s termination of the purchase agreement. Even though this provision purports to apply equally to both parties, as a practical matter, it would disproportionately affect the homebuyer’s ability to bring a claim. Further, it is not geared towards achieving an unbiased decision by a neutral decision-maker.

We conclude this provision violates §§ 15-3-140 and 15-3-530 and is therefore unconscionable and unenforceable.

Although the arbitration clause contains no severability clause, S.C. Code Ann. § 36-2-302(1) allows this court to effectively sever the unconscionable provision.

S.C. Code Ann. §§ 15-3-540 and 36-2-302(1) operate to sever the unconscionable portion of the arbitration clause. Although the arbitration clause did not contain a severability clause, the offending provision is distinct and constitutes the final two sentences of the arbitration clause. Thus, notwithstanding the lack of a severability clause, it is possible for this court to simply delete the offending language without affecting the basis of the parties’ bargain or rewriting their agreement. We sever the final two sentences from the remainder S e e P a g e 12 ►

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12 / OPINION DIGESTS C o nt inu e d f r o m 11 ►

of the arbitration clause and we affirm the circuit court’s order compelling arbitration as modified.

Finally, we find plaintiffs’ contention that the circuit court erred in dismissing claims related to the limited warranty provision when it found the limited warranty “f[ell] outside” of the arbitration clause is without merit. The circuit court did not find such claims fell outside of the scope of the arbitration clause. Rather, in considering the enforceability of the arbitration clause, the circuit court concluded the limited warranty provision was separable and that the arbitration clause did not specifically limit plaintiffs’ ability to bring a warranty action in a judicial setting. The circuit court additionally concluded the arbitration clause provided that all claims and disputes arising out of the purchase agreement were subject to arbitration.

Affirmed as modified.

Huskins v. Mungo Homes, LLC (Lawyers Weekly No. 011-033-22, 12 pp.) (James Lockemy, A.J.) Appealed from Richland County Circuit Court (DeAndrea Benjamin, J.) Charles Harry McDonald, Beth Richardson, Brady Ryan Thomas, Matthew Anderson Nickles and Terry Richardson for appellants; Steven Raymond Kropski and David Overstreet for respondent. S.C. App.

Real Property Zoning – Municipal – Amended Height Restriction – Prior Setback Approval Before the building height restriction in their neighborhood was lowered from 75 feet to 45 feet, the appellant-landowners sought and received setback and buffer variances. At that time, appellants submitted neither a 1”=30’ scaled site plan nor a written narrative explaining in detail the variances requested, as required by the respondent-town’s land management ordinance (LMO). Moreover, nothing in the variance application said what the exact height of the proposed buildings would be.

Accordingly, appellants’ rights are vested only as to the horizontal setback and buffer variances and not as to the greater height allowance in effect prior to the town’s 2017 amendment of its LMO. We affirm the master-in-equity’s order affirming the town board of zoning appeals’ decision overruling a determination by the town’s director of community development.

Bradley Circle Vacation Partners, LLC v. Town of Hilton Head Island (Lawyers Weekly N. 012010-22, 7 pp.) (Per Curiam) Appealed from Beaufort County Circuit Court (Marvin Dukes, Master-in-Equity) Drew Laughlin for appellants; Curtis Lee Coltrane for respondents; Tamara Becker and Rhonda Carper, pro se. S.C. App. Unpub.

Criminal Practice Search & Seizure – Felon in Possession of a Firearm – Noise Ordinance Where (1) police officers ap-

proached a parked car because they believed the car’s loud music violated the town’s noise ordinance; (2) the officer on the driver’s side noticed the smell of marijuana, and the driver admitted to having smoked marijuana earlier in the day; and (3) now having probable cause to search the vehicle, before asking the defendant-passenger to step out of the car, an officer asked defendant whether he had anything illegal on him, and defendant admitted to having a gun, the district court properly denied defendant’s motion to suppress the gun found by the officer when he patted defendant down.

We affirm defendant’s conviction of being a felon in possession of a firearm.

United States v. Strong (Lawyers Weekly No. 003-025-22, 5 pp.) (Per Curiam) 19-4315. Appealed from USDC at Rock Hill, S.C. (Cameron McGowan Currie, S.J.) Aimee Zmroczek for appellant; Rhett DeHart and Kathleen Stoughton for appellee. 4th Cir. Unpub.

Civil Rights Assault & Battery Arrest – Probable Cause – Conflicting Stories Even though the arresting officer knew of the complainant’s history of aggression towards the plaintiff’s decedent, the statements of the complainant and her son gave the officer probable cause to arrest the decedent for assault and battery after her altercation with the complainant.

We affirm summary judgment for the officer on plaintiff’s federal claims. However, as to certain of plaintiff’s state claims, we vacate and remand for reconsideration The district court declined to consider the arguments raised in plaintiff’s objections regarding his state claims and improperly reviewed the magistrate judge’s recommendations only for clear error. While certain of plaintiff’s objections were adequately considered by the district court when considering identical arguments with regard to his federal claims, we conclude that the following state claims were not adequately reviewed de novo by the district court: gross negligence and recklessness, intentional infliction of emotional distress, state malicious prosecution, defamation, and negligent hiring, training, retention, and supervision. Accordingly, we vacate the portions of the district court’s order granting summary judgment on the state law claims listed above and remand for de novo review of the magistrate judge’s report and recommendation.

Brown v. Lott (Lawyers Weekly No. 003-026-22, 9 pp.) (Per Curiam) No. 21-6928. Appealed from USDC at Columbia, S.C. (Michelle Childs, J.) Chris Truluck for appellant; Andrew Lindemann and Robert Garfield for appellee. 4th Cir. Unpub.

Domestic Relations Statutory Amendment – Appeals – Mootness The stated asked us to review whether the Court of Appeals (1)

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 20, 2022

improperly interpreted S.C. Code Ann. § 23-3-430(D) and the legislative intent behind it, (2) improperly ignored the proper standard of appellate review by weighing evidence and substituting its own interpretation of the evidence for that of the family court and (3) improperly based its decision only on testimony presented at the family court hearing while ignoring the other evidence supporting the family court’s determination of good cause. Between the Court of Appeals’ ruling and oral argument before this court, the governor signed into law Act 221 of 2022, which substantially amended § 23-3-430(D) and enacted S.C. Code Ann. § 23-3-436. As a result, the issues before the court are now moot, and we dismiss the state’s petition for a writ of certiorari.

However, we decline to vacate the Court of Appeals’ opinion.

Dismissed.

In re Christopher H. (Lawyers Weekly No. 010-020-22, 2 pp.) (Per Curiam) Appealed from Richland County Family Court (Greg Seigler, J.) On writ of certiorari to the Court of Appeals. Alan McCrory Wiilson, Deborah Shupe and Samuel Hubbard for petitioner; Taylor Davis Gilliam for respondent. S.C. S. Ct.

Real Property Extra-Contractual Requests – Title Insurance, Tax Lien & Corporate Dissolution In the underlying failed real estate transaction, the plaintiffbuyer’s closing attorney was attempting to zealously represent his client by insisting on a certificate of tax compliance, attempting to obtain title insurance, and trying to clean up the defendantseller’s corporate dissolution issue. However, the parties’ real estate sale contract required none of these things, and the seller did not breach the contract by refusing to be flexible or cooperative.

We reverse the master-in-equity’s rulings in favor of the buyer.

The parties’ “time is of the essence” contract had a final closing date of October 8, 2013. Because of issues regarding title insurance, the contract did not close by October 8, 2013. On October 10, 2013, the defendant-seller sold the property to another purchaser.

The parties’ contract was not contingent upon financing. The contract placed the burden of both investigating the requirements of title insurance and obtaining title insurance on the plaintiffbuyer. Nowhere in the contract do the parties make the transaction contingent upon the ability of the buyer to obtain title insurance.

Furthermore, there was no impediment to the transfer of marketable title in this case. Therefore, the closing deadline was October 8, 2013, and the seller did not breach the contract by either (1) declining to take last-minute steps to remedy the buyer’s title insurance problem or (2) selling the land to another entity.

At the time of the contract, the seller was in administrative dissolution status in Georgia. However, both South Carolina and Georgia have statutes providing a company in administrative dissolution may convey property. Accordingly, the

seller’s dissolution status did not affect the marketability of title.

A $514.01 tax lien was placed on the property during the contract’s 30-day due diligence period and was not discovered by either party by the time of the scheduled closing date. The seller was required to discharge the tax lien to perform its duty to convey marketable title. However, there would be no breach of the seller’s contemporaneous duty to convey marketable title so long as the seller discharged the tax lien with the proceeds from closing.

Accordingly, the seller’s failure to discharge the lien before it received the closing proceeds from the buyer cannot amount to breach of contract. Because the seller never received closing proceeds from the buyer, it did not breach its duty to convey marketable title for failure to discharge the small tax lien.

Moreover, nothing in S.C. Code Ann. § 12-54-124 requires the seller to obtain a certificate of tax compliance in order to convey the majority of its assets. Instead, the statute transfers tax liability of the seller to the purchaser when the purchase occurs. Accordingly, the seller’s failure to obtain a certificate of tax compliance was not a breach of its duty to follow the law and cannot be a basis for breach of contract.

Furthermore, the parties did not explicitly bargain for the issuance of a certificate of tax compliance, so the seller’s refusal to procure this certificate was not breach of contract.

Because the seller did not breach the contract, we reverse the master’s ruling that defendants are liable for breach of contract accompanied by a fraudulent act.

The master found that defendants made two false representations. The first was that defendants represented they were willing close on “October 7, 2013, with full knowledge of the dissolution of [defendant] Hird Island and the issue it presented for the title insurance company.” The second was that defendants, through the seller’s attorney, continued to negotiate terms to close the contract with the plaintiff-buyer when, in reality, the seller was contracting to sell the land to another purchaser.

Initially, we question whether the record supports the master’s findings that these statements were false. However, neither of these representations, be they false or not, can lead to liability for negligent misrepresentation.

As a matter of law, under the parties’ contract, the seller had no duty to either (1) solve the buyer’s title insurance problem or (2) sell the property to the buyer after the buyer failed to transfer the proceeds of the sale to the seller by the closing deadline. Accordingly, we reverse the master’s ruling that defendants committed the tort of negligent misrepresentation.

Reversed.

Lady Beaufort, LLC v. Hird Island Investments, Inc. (Lawyers Weekly No. 012-011-22, 8 pp.) (Per Curiam) Appealed from Beaufort County (Marvin Dukes, J.) Fred Kuhn for defendants; Andrew Epting and Jaan Gunnar Rannik for plaintiffs. S.C. App. Unpub.