Susan Beck, Chippendolls, Inc., )
d/b/a Chippendolls, ) ORDER AND DECISION
Petitioners, ) Docket No. 95-ALJ-17-0411-CC
South Carolina Department of Revenue )
and Taxation, )
Hollywood - Rose Hill Neighborhood )
APPEARANCES: David Belding, Esquire for Petitioners
Nicholas Sipe, Esquire for Respondent
Timothy Rogers, Esquire for Protestor Hollywood-Rose Hill Neighborhood Association
This matter is before me on the application of Susan Beck and Chippendolls, Inc. for an on-premises beer and wine permit for a location at 1928 Rosewood Drive in Columbia, South Carolina. The applicant requested a hearing upon notice from the Department of Revenue and Taxation (Department) of protests to the application. The permit application was protested by the Department, A. C. Moore Elementary School, and Rosewood Baptist Church. After notice to the parties, a hearing was conducted on August 7, 1995. The Hollywood-Rose Hill Neighborhood Association moved to intervene at the hearing to protest the permit application which was granted. The file of the Department was incorporated into the record and a copy substituted for the original. For the reasons set forth in this Order, the application is granted.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order
are deemed denied. ALJD Rule 29(B). Further, the filing of a Motion for Reconsideration, ALJD
Rule 29(B), is not a prerequisite to any party filing a Notice of Appeal of this Order.
I make the following findings of fact, considering the burden on the parties to establish their cases by a preponderance of the evidence and taking into account the credibility of the witnesses:
1. The applicant is seeking an on-premises beer and wine permit for Chippendolls, an adult entertainment club located at 1928 Rosewood Drive, Columbia, South Carolina.
2. The proposed location is situated in a mixed commercial and residential area. Rosewood Drive itself is primarily commercial with residences located behind the businesses fronting Rosewood Drive.
3. The applicant, Susan Beck is 30 years old and has been a resident of South Carolina for over eight years. She is a legal resident of the United States.
4. She has no criminal record and is a person of good moral character. Susan Beck has never held any permits for the sale of beer, wine or alcoholic beverages. No violations have ever been issued against her relating to the sale of beer, wine, or alcoholic beverages.
5. Notice of the application has appeared at least once a week for three consecutive weeks in The State, a newspaper of general circulation in the local area where the applicant proposes to do business.
6. Notice of the application was displayed at the proposed location for a minimum of fifteen (15) days.
7. Chippendolls, Inc. was incorporated on February 9, 1995. Susan Beck is Vice President of Chippendolls, Inc. and her ex-husband Roy Beck is President.
8. Roy Beck was convicted of possession with intent to distribute marijuana in 1980 and possession of marijuana in 1984. The sentence and fines imposed have been served. The probationary period has passed. More recently, Roy Beck was convicted of driving under a suspended license in 1992. The age of the 1980 and 1984 convictions render them stale and too remote to affect the moral character of Roy Beck. Therefore, he is of sufficient moral character for the purpose of determining whether a beer and wine permit should be issued.
9. Roy Beck manages the location and has done so since 1988 when it was the "Twilight Lounge". Shortly after beginning operation, the character of the location changed from a college hang-out to adult entertainment.
10. The exterior appearance of the building has been upgraded. There are male employees who monitor the interior and exterior of the location each night.
11. Between 1990 and 1994, there have been 37 police incident reports for 1928 and 1930 Rosewood Drive for activity occurring at the location. The most frequent reports relate to simple assault (5), auto breaking (4), burglary of the premises (4), destruction of private property (5), and indecent exposure (7). The indecent exposure charges occurred in 1990 against Roy Beck and six dancers. All were found not-guilty by a jury.
12. Chippendolls offers adult entertainment in the form of women dancing totally nude. The hours of business are 6:30 p.m. to 1:00 a.m. or 2:00 a.m. Monday through Saturday. The business never opens before 6:30 p.m. The type of entertainment offered is not advertised on the outside of the location. Billboards advertising the business are located on the Interstate highways on the outskirts of Columbia. Currently, patrons bring their own alcoholic beverages to the club.
13. Some parking for Chippendolls is located in front of the location. Pursuant to an agreement with the Piggly Wiggly grocery store across the street, additional parking is available in the Piggly Wiggly lot. There is also another lot across the street next to Chippendolls that leases space to Chippendolls for parking.
14. A. C. Moore Elementary School and Rosewood Baptist Church protested the application. The proposed location is 904 feet from the entrance to the elementary school and 222 feet from the entrance to the nearest residence. Rosewood Baptist Church is one half mile and Grace Church and Full Gospel Church are located three-tenths of one mile from the location.
15. Several locations in the area sell beer and wine for on-premises or off-premises consumption. Two are located in the same block as the proposed location. The Piggy Wiggly grocery store (across the street on Rosewood) sells beer and wine to go and Jack Gladden's Edisto Market located next to Chippendolls (on Rosewood) sells beer and wine for on-premises consumption.
16. The proposed location is suitable for the sale of beer and wine for on-premises consumption.
17. Susan Beck filed state income tax returns for 1993 and 1994. There were no returns filed prior to 1993. The Department protested the application on the basis that Susan Beck may have outstanding tax liabilities. The information of the Department revealed that Beck showed zero taxable income. Susan Beck did not earn any income in 1991 and 1992. In 1993, when she and Roy Beck separated and later divorced, he paid her expenses.
18. No income tax returns were filed with the U.S. Internal Revenue Service by Susan Beck after 1989. The information maintained by the IRS contained no record of any returns. There were no federal income tax liens against Susan Beck. Roy Beck owes federal and state income taxes and has made arrangements to pay his tax liabilities.
19. The Department failed to establish that Susan Beck owed any state or federal taxes, interest, or penalties.
20. Near the end of 1994 or early 1995, she was employed for one and one-half months at a bar. This employment was not disclosed on her beer and wine application.
21. The elementary school holds after school activities beginning after 6:30 p.m. The parent teacher organization meeting and an education foundation meeting are held monthly. Occasionally, there are family dinners and other family activities at the school beginning at 7:00 p.m.
22. The principal of the school is concerned about the children living in the Henley Homes housing development that walk past the location in the evening returning to school.
23. Rosewood Baptist Church has evening activities. These activities include: Bible study, prayer services, church group meetings, basketball games, and tutorial programs. The church objects to the location because they fear the neighborhood will deteriorate, church membership will decrease, property values will decrease, crime will increase, and the business is not in character with the neighborhood.
24. The Hollywood-Rose Hill Neighborhood Association (Association) encompasses the area bordered by Heyward Street on the North, Harden Street on the East, Rosewood Drive on the South and South Marion Street on the West. The neighborhood ends at Rosewood Drive across the street from the proposed location. The Association objects to the location being licensed because of the potential for increase in crime, the consumption of beverages containing alcohol in close proximity to the neighborhood and the nature of the activity occurring inside the location. Concern was also expressed about the past criminal activity of Roy Beck.
25. In 1989, Mary Mayers held the beer and wine permit and the sale and consumption license for the location. The Alcoholic Beverage Control Commission did not renew the license and permit for the location in an Order dated February 13, 1990. One reason the sale and consumption license was not renewed was because the business was not "engaged primarily and substantially in the preparation and serving of meals" as required by law.
26. The Commission further determined that "on-premise consumption of beer and wine and alcoholic liquors at a topless nightclub is inconsistent with the character of the neighborhood." The conclusion is based upon the fear expressed by the protestants "of walking the sidewalks at night due to the type of clientele drawn by the licensed location", the location of the elementary school on the same street, one and one-half blocks away and the Rose Hill Presbyterian Church located two blocks from the location.
27. Rose Hill Presbyterian Church is not depicted on the map contained in the record.
28. In that Order, the Commission determined that Roy Beck, manager and employee of the location, was not of "suitable moral character" because of the 1980 and 1984 convictions.
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 61-1-55 (Supp. 1994) authorizes the South Carolina Administrative Law Judge Division to hear this case pursuant to Chapter 23 of Title 1, as amended, of the 1976 Code.
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance of a beer and wine permit, and reads as follows:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises, are of good moral character.
(2) The retail applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of applicant.
(3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained this principal place of abode in South Carolina for at least thirty days before the date of application or has been licensed previously under the laws of this State.
(4) The applicant, within two years before the date of applicant, has not had revoked a beer or a wine permit issued to him.
(5) The applicant is twenty-one years of age or older.
(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before its effective date.
(7) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. Applicants for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.
(8) Notice has been given by displaying a sign for fifteen days at the site of the proposed business.
The sign must:
(a) state the type of permit sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the department.
3. Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
4. The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
5. The denial of a permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested permit consists entirely of opinions, generalities, and conclusions not supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
6. The fact that the Association, Church and school protest the issuance of the permit is not sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).
7. No holder of a beer and wine permit or any agent or employee of the permittee shall knowingly permit lewd, immoral, or improper entertainment, conduct, or practices. This includes, but is not limited to, entertainment, conduct or practices where a person is in a state of undress so as to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering. S.C. Code Ann. § 61-9-410(4) (Supp. 1994). A violation of this provision is a ground for the revocation or suspension of the holder's permit. S. C. Code Ann. § 61-9-410 (Supp. 1994).
8. S.C. Code Ann. § 61-3-425 (Supp. 1994) prohibits the issuance of a license unless the Department and the Internal Revenue Service determine that the applicant does not owe the state or federal government delinquent taxes, penalties, or interest.
9. " A misstatement under oath or a concealment of fact may provide a basis for denial, as well as revocation of a permit or license sought by the [applicant]. Wall v. S.C. Alcoholic Beverage Control Comm'n, 269 S.C. 13, 235 S.E.2d 806, 808 (1977). Any misstatement or concealment of fact in any application is a sufficient ground for revocation of the permit issued by reason of such application. S.C. Code Ann.§ 61-9-340 (Supp. 1994).
10. Conviction of a crime does not under all circumstances constitute ineligibility for a license. In evaluating the fitness of a person's moral character, consideration must be given to the circumstances of any conviction of record as well as to the extent to which rehabilitation has occurred. 48 C.J.S. Intoxicating Liquors § 105.
11. Upon a determination that an applicant meets the criteria set forth, the Department must issue the permit after payment of the prescribed fee. S. C. Code Ann.§ 61-9-340 (Supp. 1994).
Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. There has been no evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit would affect the residents' safety, create traffic problems, or have an adverse impact on the community. The proposed location and the nature of the business activity are suitable and proper given the commercial nature of Rosewood Drive.
The grounds offered by the protestors as justification for the denial of the applicant's permit are speculative and/or not supported by sufficient evidence. The objections based upon projected increase in crime are not warranted since the location has been allowing patrons to bring in not only beer and wine but also alcoholic liquors and consume them without any restrictions for five years.
Furthermore, the police reports introduced as evidence do not support these allegations given that only 37 reports have been reported for the location over a five year period. That is an average of approximately seven reports a year. The testimony indicated that the Piggly Wiggly grocery store across the street from the location had more incident reports. Additionally, there is no evidence that the assaults cited in the incident reports involved residents of the neighborhood. In fact, the property crimes listed in the incident reports indicate the patrons were the victims of the criminal activity not the perpetrators.
The principal of the elementary school contends that elementary school age children return to the school for activities unaccompanied by adults. The concern is for the safety of the children passing by Chippendolls but no concern is expressed about passing by Edisto Market which is closer to the school than Chippendolls. The Edisto Market, located next to the proposed location, is licensed for on-premises consumption and is also closer to residences than Chippendolls but no protests were made against The Edisto Market when it applied for its on-premises permit.
Rosewood Baptist Church expressed concerns about decreases in property values in the community. There is no evidence about the current property values of the community and absolutely no evidence that the proposed business has any impact on them. Any complaints about property values are speculative and not relevant to the issues in this case.
Of the three protestors, the Church is located the farthest from the location and has not demonstrated how this location would adversely affect it. There is no evidence to demonstrate that the location would have a detrimental effect in attracting members. Chippendolls is closed on Sunday. The church has not demonstrated what, if any, effect the business has on the activities of the church conducted during the week.
Susan Beck failed to disclose her one and one half month employment on her application. Based upon the omission, the Association sought the denial of the application. She disclosed her employment during her testimony. A misstatement or concealment of fact may provide a basis for denial of the permit and is therefore discretionary. The failure to disclose on her application 45 days employment at another bar is not a sufficient basis to deny the permit.
With respect to the moral character of Roy Beck, I conclude that he is a person of suitable moral character to own and manage the location. The 1990 Order of the former Alcoholic Beverage Control Commission which found him to be of unsuitable moral character was issued within six years of Beck's conviction for simple possession of marijuana. The South Carolina Supreme Court has repeatedly held that whether a prior conviction is admissible to attack the credibility of a witness is within the discretion of the trial judge. State v. Mueller, ___ S.C. ___, 460 S.E.2d 409 (Ct. App. 1995); Horton v. State, 306 S.C. 252, 411 S.E.2d 223 (1991); State v. Johnson, 271 S.C. 485, 248 S.E.2d 313 (1978). The 1980 and 1984 convictions of Beck are now over ten years old. These convictions are too remote in time to attack the credibility and the moral character of Roy Beck. Further, there have been no intervening criminal convictions other than a driving offense not involving alcoholic beverages. There is no evidence to indicate that Roy Beck is not of suitable moral character.
The objections with respect to the activity occurring inside the location will be moot based upon the law if the permit is granted. The former Alcoholic Beverage Control Commission made a finding in its 1990 order that the nature of the proposed business activity was inconsistent with the character of the neighborhood. Susan Beck, although reluctantly, and Roy Beck testified they would comply with the law if granted a beer and wine permit. Ms. Beck's reluctance was because she has not been informed that a holder of a beer and wine permit may not allow nude dancing at the licensed location. The statute clearly requires that the permit holder or his agent or employee shall not knowingly permit entertainment, conduct, or practices where a person is in a state of undress so as to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering. S.C. Code Ann. § 61-9-410 (Supp. 1994). The testimony revealed that the female dancers at Chippendolls dance completely nude. The issuance of a beer and wine permit would require the dancers to cover portions of their bodies or the permit holder risks revocation or suspension of the beer and wine permit.
The protests made in this case are not logical. Chippendolls has been operating in the neighborhood since 1990. From its inception, the business has not been licensed, but has allowed patrons to bring in their beer, wine or liquor for consumption. Since patrons do not purchase the alcoholic beverages on premises, Chippendolls has little control over how much a person consumes. Conceivably, a patron could bring an unlimited quantity of alcoholic beverages, consume them until intoxicated, and continue to imbibe while intoxicated without intervention by management. This scenario poses a greater risk than one in which the management is required by law to refuse service to an intoxicated person. See S.C. Code Ann. § 61-9-410 (Supp. 1994). It is also difficult to believe the protestors would object to the sale of beer and wine in Chippendolls which would require dancers to cover parts of their bodies, preferring instead to allow patrons to bring onto the premises not only beer and wine but alcoholic liquors to consume while watching females dance totally nude. I understand the reluctance to accept an establishment such as Chippendolls in the community. However, the protests relating to safety, property values, decline in church membership, and others raised are not supported by the evidence in this case.
For the reasons stated above it is hereby,
ORDERED, that the application of Susan Beck and Chippendolls, Inc. for an on-premises beer and wine permit for its location at 1928 Rosewood Drive in Columbia, South Carolina is hereby GRANTED. Chippendolls is required to comply with S.C. Code Ann. § 61-9-410(4) (Supp. 1994) prior to the issuance of the permit. The Department shall issue the permit upon the payment of the appropriate fees and evidence by Chippendolls that it is complying with S.C. Code Ann. § 61-9-410(4) (Supp. 1994).
AND IT IS SO ORDERED.
ALISON RENEE LEE
Administrative Law Judge
October _____, 1995
Columbia, South Carolina.