By Paul Gable
The S.C. Supreme Court notified both attorneys in the Skydive Myrtle Beach v. Horry County lawsuit that they have been afforded the opportunity to file supplemental briefs with the Supreme Court addressing the merits of the entire case.
The order, signed by Chief Justice Donald Beatty, was filed two days after a September 24, 2019 hearing of the parties before the Court.
The September 24th hearing was scheduled to address whether a claim by the county that the issue of the county’s eviction of Skydive Myrtle Beach (SDMB) from Grand Strand Airport in October 2015 was in fact “moot” as the county claimed.
Attorney Mike Battle, representing Horry County, told the court during his oral argument that the decision before the Court was of a very limited scope.
Evidently the justices don’t see it that way.
The order from the Chief Justice reads in part, “The briefs filed with this Court only address the issue of mootness. … this Court may wish to address the merits of this case. Therefore, this Court will afford each party the opportunity to serve and file a supplemental brief addressing the merits.”
The order goes on to say any supplemental brief must be filed within 30 days of the date on the order, September 26, 2019, and no briefing in response to any supplemental brief filed will be allowed.
The merits of the case have never been litigated.
The Supreme Court has heard arguments before it on two occasions regarding aspects of the case.
The first hearing, held last spring, dealt with whether the District Court erred in removing individual defendants from the case. The S.C. Court of Appeals upheld that decision but the Supreme Court reversed it and remanded the case to District Court for trial with the individuals included with Horry County, Horry County Department of Airports and Robinson Aviation as defendants.
Those individual defendants include former county chairman Mark Lazarus and all members of council seated in 2014 and 2015. They also include former airport director Pat Apone, former county administrator Chris Eldridge, county attorney Arrigo Carotti and other individuals who worked for the Department of Airports or Robinson Aviation involved in actions claimed in the lawsuit.
The second hearing was about the mootness issue.
The merits of the case are where the county has problems.
During his oral argument on September 24, 2019, Battle stated there was “a disagreement about the facts on why they (SDMB) left (the rented location at Grand Strand Airport).”
Speaking about SDMB, Battle stated, “Their rights to do jumping operations at the airport was declared unsafe and affirmed by the FAA (Federal Aviation Administration) and they’re no longer allowed to do jumping operations there.”
Battle’s statement about unsafe jumping operations is not supported by documents submitted as exhibits in the case. This is why review of the merits of the case are not in the county’s interest.
A quick recap of the case:
In early 2014, shortly after Skydive Myrtle Beach (SDMB) reported to the FAA of discriminatory actions against it by the Horry County Department of Airports (HCDA), HCDA and other Horry County officials apparently decided they wanted to eliminate SDMB from operating in Horry County.
In 2014, HCDA, some council members and other county employees began circulating stories about alleged safety violations committed by SDMB while it was operating out of Grand Strand Airport.
In October 2015, Horry County government ultimately evicted SDMB from Grand Strand Airport using a 73 page FAA Director’s Determination as justification.
Much of the Director’s Determination report was based on 112 safety violations allegedly committed by SDMB and quite unofficially and sloppily documented by HCDA and Robinson Aviation, its tower operator at Grand Strand Airport.
On at least three occasions since the Director’s Determination was published, the FAA has admitted in email correspondence regarding Freedom of Information Act requests that it has no documentation with respect to investigations, fines or other actions taken by HCDA on the alleged 112 violations. (See link 2 below)
Likewise, Horry County Attorney Arrigo Carotti wrote in an email response to FOIA requests seeking information on the 112 alleged violations that, “These records are provided in an abundance of caution, in that each may or may not demonstrate violation by Skydive Myrtle Beach of Horry County Department of Airports Minimum Standards, as that assessment has not been undertaken.” (See link 1 below)
At the time most of the alleged violations occurred, there were no minimum standards in effect for Grand Strand Airport. This is another of the “facts” of the case.
Despite the official responses by both the FAA and Horry County that there is no official record of any alleged safety violations committed by SDMB, the skydiving business was evicted.
It will be interesting to see how the S.C. Supreme Court views the discrepancies between the claims by Horry County of unsafe operations on the part of SDMB and the lack of any documentation supporting those claims.
It appears the County’s case is built on claims of fictitious safety violations for which there is no supporting documentation. It also appears the County believed it could extend the case, using taxpayer dollars, until the plaintiffs no longer had the resources to continue the fight.
Link 1 FOIA (1)
Link 2 image2016-07-07-081902