Is a microwave a stove? A hot dog a meal? The answers could affect hundreds of SC bars

An SC judge has ruled that a Five Points bar must sell food like a restaurant. If upheld on appeal, the ruling could impact hundreds of bars in South Carolina.
An SC judge has ruled that a Five Points bar must sell food like a restaurant. If upheld on appeal, the ruling could impact hundreds of bars in South Carolina.

There are no bars in South Carolina.

Those beachfront tiki bars, backwoods roadhouses and big-city dive bars? They are not bars at all. They are restaurants. All of them.

You see, only servers in restaurants and hotels can mix a cocktail or pour a shot in South Carolina. But critics say many establishments have skirted that law — with state regulators' consent — by heating up a hot dog in a microwave or offering other minimal fare.

A challenge to the liquor licenses of two bars in Columbia’s Five Points could change all that. A South Carolina administrative court judge has ruled that a microwave does not constitute a kitchen and heating up a hot dog does not constitute preparing a meal.

If Judge Deborah Durden’s April ruling holds through what are expected to be a string of appeals up to and including the S.C. Supreme Court, the whole drinking landscape of the Palmetto State could change.

“I’m trying to clean up Five Points,” said Dick Harpootlian, a Columbia attorney who is leading a crusade by neighbors living around the Five Points district to reverse the spread of late-night college bars. “If this causes ripples across the state, that’s not my problem.”

In August, Harpootlian and the neighbors plan to challenge the liquor license renewals of a dozen or more late-night Five Points bars that mostly cater to University of South Carolina students, many of whom are underage and use fake IDs.

Each weekend, thousands of people crowd the bars in Five Points looking for a fun and wild night.

The throngs of students who gather in the bars after midnight result in vandalism, violence, public drunkenness and lurid behavior, the neighbors claim.

The legal battle now is focused on the liquor licenses of two late-night bars — the Five Points Roost, formerly Carolina Pour House, and Rooftop Bar, both ostensibly owned by the same people.

The Roost has already been denied a liquor license, in part for not meeting the kitchen and food requirements, but will appeal, according to the owners’ attorney, Mike Montgomery. A hearing before Durden on Rooftop’s license is scheduled for May 14.

If Durden’s decision concerning the food requirements are upheld on appeal, hundreds of other establishments in South Carolina could be affected if they sell primarily booze and not much food.

That would be fine with Harpootlian.

“The law is the law,” he said. "And it's not being enforced."

Attorney questions if Five Points bar is legal to sell liquor.

'Bona fide'

The issue could come down to the definition of the words “primarily” and “substantially” and whether a microwave is a “stove.”

South Carolina legalized liquor by the drink by public referendum in 1972. It was a compromise between those who didn’t want liquor served at all and those who saw the measure as essential for tourism and the state’s economic development.

The change was made a part of the state's Constitution, but the statute has been updated several times through the years, most recently in 2008. Here are the main tenets in question in Durden’s ruling:

To get a liquor license, an establishment must be a “bona fide” restaurant “engaged primarily and substantially in the preparation and serving of meals;”

The establishment must be “equipped with a kitchen that is utilized for the cooking, preparation and serving of meals upon a customer request at normal meal times;” and,

A “kitchen” is defined as a “separate and distinct” area of the business that “must include at least twenty-one cubic feet of refrigerated space for food and a stove.”

There are more regulations, of course. There must be menus. There must be seating at tables for 40 people. The food must be prepared on the premises.

“Sandwiches, boiled eggs, sausages or other snacks prepared off the licensed premises but sold there are not meals,” the law also states.

What's a 'stove'?

This might seem simple. But it’s not.

The state Department of Revenue interprets the law and issues liquor licenses and beer and wine permits. The State Law Enforcement Division conducts initial inspections at the direction of the department.

But an interpretation by the Revenue Department has gutted the statute, critics claim, opening the door to the proliferation of late-night college bars in Columbia.

The department determined that a microwave is a stove, and heating a hotdog in a microwave constitutes a meal. The department said state law does not define "stove," so it turned to the dictionary.

“Merriam-Webster’s Dictionary defines 'stove' as 'a portable or fixed apparatus that burns fuel or uses electricity to provide heat (as for cooking or heating),'” a spokeswoman wrote in answer to questions from The State newspaper.

Harpootlian said the interpretation “would be laughable if it didn’t allow these bars to over-serve these kids.”

As for the late-night bars serving regular meals, he added: “Most of these places don’t open until 10 o’clock at night and tens of thousands of kids aren’t descending on Five Points after 10 o’clock at night to have dinner. Unless you consider a Jell-O shot food. It does have Jell-O in it.”

(For the record, a Jell-O shot is a small, plastic shot cup of Jell-O made with, most often, vodka.)

'Primarily' engaged

Judge Durden rejected the dictionary definition in her decision to deny the Roost a permanent alcohol license. "The proposed location does not have an oven or a stove other than a microwave," she ruled.

She also questioned the ratio of food sales to drink sales at the Roost. The owners testified that 5 percent of its sales were from hot dogs microwaved in-house and pizza slices brought in from a nearby pizzeria.

Durden cited a 1972 S.C. Supreme Court ruling in which a bowling alley wanted a liquor license but was denied because food represented only 10 percent of its sales. Therefore it was not "primarily and substantially engaged in the preparation and serving of meals."

Montgomery, attorney for the Roost owners, has asked the judge to reconsider her ruling based on a change in the language of the statute made by the General Assembly in 2008.

"The ratio used in (the case) was based on a different definition of 'primarily,'" he said Friday. "That's the test that DOR has applied in licensing establishments across the state."

The changed language reads:

"'Primarily' means that the serving of the meals by a business establishment is a regular source of business to the licensed establishment, that meals are served upon the demand of guests and patrons during normal meal times that occur when the licensed business establishment is open to the public, and that an adequate supply of food is present on the licensed premises to meet the demand."

Harpootlian has argued that 'primarily' means food sales of more than 50 percent. Montgomery disagrees.

"If the test is 50 percent," he said, "there are a lot of restaurants in South Carolina that are not going to make it."

It is likely that other, higher courts will make that decision.

"The enforcement process is complaint-driven," Harpootlian said. "It’s license by license; it’s place by place. And we are going to challenge the re-licensing of a majority of the bars in Five Points when they come up in August."