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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
David Eliyahu vs.DHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
David Eliyahu

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
03-ALJ-07-0092-CC

APPEARANCES:
David Eliyahu
Petitioner

Matthew S. Penn, Esq.
Attorney for SC DHEC
 

ORDERS:

ORDER OF DISMISSAL

This matter is before me upon agreement by both parties to the entry of an Order of Dismissal. This is an appeal filed by Petitioner David Eliyahu of Administrative Order 02-01-EH, concerning the current occupancy of the building located at 1379 Highway 501 Business in Myrtle Beach, South Carolina, without an approved method of sewage disposal.

STIPULATIONS OF FACT

Based on the agreement of the parties, as evidenced by their signatures below, I note the following Stipulations of Fact:

1.Petitioner owns the building located at 1379 Highway 501 Business in Myrtle Beach.

2.The building located at 1379 Highway 501 Business is currently operated by Sirens Night Club (Tenant). Sirens Night Club is owned by Howard Hendricks. Mr. Hendricks was a party to Administrative Order 02-01-EH, but failed to appeal the issuance of the Administrative Order 02-01-EH in a timely manner and is not a party to this action.

3.Sirens Night Club qualifies as a retail food establishment because it serves food and beverages to its customers. See 24A S.C. Code Ann. Regs. 61-25, Chapter I(A)(26) (Supp. 2002) (definition of retail food establishment). Retail food establishments are required to have a permit to operate from the Department. See 24A S.C. Code Ann. Regs. 61-25, Chapter XIV(A) (Supp. 2002). All retail food establishments must have an approved method of sewage disposal. See 24A S.C. Code Ann. Regs. 61-25, Chapter VI(B) (Supp. 2002).

4.In July 2002, Mr. Howard Hendricks, owner/operator of Sirens Night Club, contacted the Department’s Horry County Food Protection office concerning the requirements for obtaining a permit to operate a retail food establishment at Sirens Night Club. Mr. Hendricks was referred to DHEC’s Horry County Onsite Wastewater Office for approval of the sewage disposal system.

5.On July 22, 2002, following the evaluation of Mr. Hendricks’ request for sewage disposal approval, Steve Baxley, Waccamaw District Onsite Wastewater Supervisor, sent a letter to Mr. Hendricks. The letter informed Mr. Hendricks that the existing onsite sewage disposal system was inadequate for the proposed use and that no onsite waste disposal system could be approved for his intended use due to unsuitable soil and insufficient area.

6.On August 9, 2002, a conference between Mr. Hendricks, Rod McCormick, Waccamaw District Environmental Health Director, and Keith McKinney, District Food Protection Supervisor, was held at Sirens Night Club. At the time, the business was open to the public and alcoholic beverages were being served. In September and October 2002, the parties attempted to settle this matter, but were unable to reach an agreement. On October 25, 2002, Mr. Baxley sent a letter of notice to Mr. Hendricks and Petitioner informing them that DHEC intended to issue an administrative order to require closure of the business unless an approved method of sewage disposal was established.

7.On January 14, 2003, the Department issued Administrative Order 02-01-EH to Mr. Hendricks and Mr. Eliyahu, requiring that the parties immediately cease business operations associated with the building at 1379 Highway 501 Business in Myrtle Beach until a public sewer connection could be established.

8.Because Petitioner wants to make beneficial use of the subject building, but recognizes that the existing sewage treatment system cannot sustain a retail food establishment, the parties have agreed to allow Petitioner to operate a business that is not a retail food establishment from the subject building. The parties also agree that the existing sewage treatment system and soils in which the system is placed do not have the capacity to absorb sewage flows beyond the volume intended when the system was originally designed and constructed.

9.This agreement is based on the following conditions:

a.Petitioner, as owner of the building located at 1379 Highway 501 Business in Myrtle Beach, and the Department, as the state agency with authority to regulate retail food service establishments, agree to take whatever actions are necessary to cease operations of any retail food establishment in the building located at 1379 Highway 501 Business in Myrtle Beach, until such time as a public sewer connection is established.

b.Petitioner agrees to operate a non-retail food establishment business in the building located at 1379 Highway 501 Business in Myrtle Beach, such as a retail clothing store.

c.Petitioner agrees that any business established in the building located at 1379 Highway 501 Business in Myrtle Beach will operate for no more than 10 hours per 24 hour period.

d.Petitioner agrees that whatever business is established in the building located at 1379 Highway 501 Business in Myrtle Beach will employ no more than approximately 5 people per shift.

e.Petitioner agrees that whatever new business is established in the building located at 1379 Highway 501 Business in Myrtle Beach must be operated within the maximum building structure allowed for the lot and without moving the existing bathrooms or the septic system.

f.Petitioner also agrees that the building located at 1379 Highway 501 Business in Myrtle Beach must be equipped with the minimum non-public restroom and bathroom facilities allowable under the law.

g.Petitioner agrees that he is responsible for the proper operation and maintenance of the existing individual sewage disposal system and agrees that he is responsible for repairs to the system should it fail.

h.The Department agrees that Petitioner could assign responsibility for the proper operation and maintenance of the existing system to a future lessee under a legally binding commercial lease; to the extent that such responsibility is assigned under an existing lease, the Department agrees to take regulatory action solely against the lessee for violations by the lessee.

i.Both parties agree that it is not the intent of the parties to alter or amend any existing lease of the building located at 1379 Highway 501 Business in Myrtle Beach.

j.Both parties agree that this Order of Dismissal is a solution for Mr. Eliyahu to avoid a forced annexation of the building located at 1379 Highway 501 Business into the City of Myrtle Beach, and that if the building is connected to the City of Myrtle Beach’s public sewer system, this Order of Dismissal will become null and void.

k.The Department agrees to withdraw Administrative Order 02-01-EH as it applies to Petitioner and as it applies to prohibiting any and all business operations at the building located at 1379 Highway 501 Business in Myrtle Beach.

ORDER

Based on the facts as agreed to by the parties, the following is ORDERED:

1.Petitioner is hereby authorized to use the existing sewage treatment system which services the building located at 1379 Highway 501 Business in Myrtle Beach; provided, however, that

a.the building located at 1379 Highway 501 Business in Myrtle Beach shall not be used to operate a retail food establishment until the building is connected to a public sewer;

b.the building located at 1379 Highway 501 Business in Myrtle Beach must be equipped with the minimum non-public restroom and bathroom facilities allowable under the law;

c.whatever business is established in the building located at 1379 Highway 501 Business in Myrtle Beach shall not operate for more than 10 hours per 24 hour period; and

d.whatever business is established in the building located at 1379 Highway 501 Business in Myrtle Beach shall not employ more than approximately 5 people per shift;

e.if the building located at 1379 Highway 501 Business in Myrtle Beach is connected to the City of Myrtle Beach’s public sewer system, this Order of Dismissal will become null and void.

2.Petitioner and the Department are directed to take whatever actions are necessary to immediately cease all retail food establishment operations in the building located at 1379 Highway 501 Business in Myrtle Beach and ensure that such a business does not operate in the building in the future.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

July 3, 2003

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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