ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2006), and S.C. Code
Ann. § 61-2-260 (Supp. 2006). The petitioner, Show Luv, d/b/a Mr. Lucky’s (“Petitioner”),
applied for renewal of an on-premises beer and wine permit pursuant to §§
61-4-500 et seq. and for renewal of a liquor by the drink license
pursuant to §§ 61-6-1600 et seq. for the location at 2605 Seminole Road,
Suite H, Columbia, South Carolina 29210. Captain Robert Plexico on behalf of
Richland County Sheriff’s Department (“Protestant”) filed a written protest to
the Petitioner’s application. Respondent South Carolina Department of Revenue
(“Department”) denied the application pursuant to § 61-4-525 and § 61-6-1825
due to the receipt of the Protestant’s valid public protest.
After
notice to the parties and the Protestant, the court held a hearing on this
matter on March 20, 2007. Both parties and the Protestant appeared at the
hearing. Evidence was introduced and testimony presented. After carefully
weighing all of the evidence, the court finds that the Petitioner’s application
for this location should be granted subject to the restrictions detailed below.
ISSUE
The
only issue in dispute is the suitability of the location.
§§ 61-4-520(5)-(6); Schudel v. S.C. Alcoholic Beverage Control Comm’n,
276 S.C. 138, 276 S.E.2d 308 (1981).
FINDINGS OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a
preponderance of the evidence.
Evidence
was presented regarding all of the relevant statutory criteria. Notice of the
time, date, place, and subject matter of the hearing was given to all parties
and the Protestant.
Ms.
Sandra Simpkins (“Simpkins”) is the principal member of the business seeking
the requested permit and license. She is over the age of twenty-one. She is
of good moral character and has never had a permit or license to sell beer,
wine, or liquor revoked. The business does not owe the state or federal
government any delinquent taxes, penalties, or interest.
The
Petitioner seeks renewal of a permit for the retail sale of beer and wine for
on-premises consumption and license to sell liquor by the drink for the
location at 2605 Seminole Road, Suite H, Columbia, South Carolina 29210, doing business as “Mr. Lucky’s.” Mr. Lucky’s offers adult entertainment and has operated
at the proposed location for approximately eleven years. It is located in a
strip mall off of Broad River Road near Columbia. The area in the vicinity of
the proposed location is substantially commercial, containing businesses such
as hair salons, a book store, a thrift store, a shoe store, and a car wash.
However, residential apartments and a church are located nearby. Parking at
the proposed location is adequate.
Mr.
Lucky’s experienced significant problems with safety and illegal activity from
1998 until 2004. Many of these problems took place around the location’s
parking area. In 2004, at the insistence of the Richland County Sheriff’s
Department, Simpkins met with the Sheriff’s Department to address these
problems. Since that time, Simpkins implemented significant changes to the operation
of Mr. Lucky’s. First, Simpkins took a more active role in the management of
Mr. Lucky’s. She also reduced the hours of operation and began closing between
2:00 a.m. and 2:45 a.m. Monday through Thursday and between 3:00 a.m. and 3:45
a.m. on weekends. Because most of the problems revolved around the parking lot
in front of Mr. Lucky’s, she installed new lighting and security cameras in the
parking lot. She also increased the number of staff members. Further, she
encourages the clientele to satisfy a dress code by providing discounts to
patrons wearing collared shirts and by prohibiting gang-related attire. She
has instructed the staff to call the Sheriff’s Department if any problems
arise.
Additionally,
Simpkins hired a new security company, which is licensed and bonded through the
State Law Enforcement Division (“SLED”). Alan Geathers (“Geathers”), the chief
security supervisor at Mr. Lucky’s, testified in support of the application.
Geathers is aware of Mr. Lucky’s previous problems and stated that, aside from
the occasional altercation between customers, the problems have been
eliminated. Geathers testified that he has been in security business for four
and a half years and that the altercations at Mr. Lucky’s occur with less
frequency than any other club he has worked at in Columbia. He attributes the
positive change at the club to the new lighting in the parking lot and the
visibility of the security staff. The security guards patrol the parking lot
every five to ten minutes.
Security
guards now watch each exiting patron until he reaches his car and exits the parking
lot. The club no longer permits loitering and the security guards ensure that the
parking lot is empty before leaving at the end of the night. Since hiring the
new security company, Simpkins has experienced very few problems at the club.
Simpkins
also hired Tyrone Huell (“Huell”) in January 2007 as the manager of Mr.
Lucky’s. Huell also testified in support of the Petitioner’s application.
Huell has a military and management background. Either Huell or Simpkins is
present at all times when the club is open for business. Huell testified
regarding his awareness of the problems at the club in the past, but since he
began working there, the club has had almost no problems with illegal activity.
The
Protestant testified to various concerns with the proposed location. Based on
the problems with Mr. Lucky’s in 2004, Captain Plexico on behalf of the
Richland County Sheriff’s Department filed a public protest to the renewal of the
Petitioner’s permit and license. He stated that at that time the Sheriff’s
Department opposed licensing this location due to the number of complaints the
Sheriff’s Department was receiving and the illegal activity in the area. He
testified that from 1998 until 2004 this area was a “war zone” and the
Sheriff’s Department had received over 300 calls regarding this location. The
complaints ranged from excessive noise to illegal drug activity, car thefts,
fights, and shootings. Captain Plexico estimated that the Sheriff’s Department
had to respond to problems at the club approximately one hundred times per year
during that time.
Captain
Plexico acknowledged that, since that time, Simpkins has made significant
changes to the club’s operation. He stated that the complaints have greatly
decreased since the club’s reopening in August 2006 following temporary closure
due to fire. Captain Plexico now estimates that the Sheriff’s Department only
has to respond to problems around the club approximately five times per year. He
expressed the Sheriff’s Department’s willingness to “go along” with the renewal
of the Petitioner’s license and permit if the changes Simpkins made remain in
place and the complaints do not increase in the future. He also voiced concern
regarding loud music from the club and from cars in the parking lot.
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
1. Jurisdiction
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[T]he
issuance or granting of a license to sell beer or alcoholic beverages rests in
the sound discretion of the body or official to whom the duty of issuing it is
committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C.
246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C.
Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977). The
weight and credibility assigned to evidence presented at the hearing of a
matter is within the province of the trier of fact. See S.C. Cable
Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417
S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is
in the best position to judge the witness’s demeanor and veracity and to
evaluate the credibility of his testimony. See, e.g., Woodall v.
Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken
& Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
2. Suitability of Location
a. Generally
Section
61-4-520 establishes the criteria for the issuance of a beer and wine permit.
Included in the criteria is the requirement that the proposed location be a
proper and suitable one. See §§ 61-4-520(5)-(6). Additionally, § 61-6-1820
sets forth the basic criteria for the issuance of a liquor license. However, a
liquor license may be denied if the proposed location is not suitable. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d
308 (1981). Therefore, either a beer and wine permit or a liquor license may
be denied if the location of the business is not a proper one.
b. Factors
in Determining Proper Location
“Proper
location” is not statutorily defined, but broad discretion is vested in the
trier of fact to determine the fitness or suitability of a particular location
for the requested permit. See Fast Stops, Inc. v. Ingram, 276
S.C. 593, 281 S.E.2d 118 (1981). In determining whether a proposed location is
suitable, it is proper for this tribunal to consider any evidence that shows
adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 326,
338 S.E.2d 335, 337 (1985); Palmer, 282 S.C. at 249, 317 S.E.2d at 478
(citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)). The
determination of suitability of location is not necessarily solely a function
of geography. Rather, it involves an infinite variety of considerations
related to the nature and operation of the proposed business and its impact on
the community within which it is to be located. Kearney, 287 S.C. at
326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276 S.E.2d at 308.
Further,
a liquor license or
permit may be properly refused on the ground that the location of the
establishment would adversely affect the public interest, that the nature of
the neighborhood and of the premises is such that the establishment would be
detrimental to the welfare . . . of the inhabitants, or that the manner of
conducting the establishment would not be conducive to the general welfare of
the community.
48 C.J.S. Intoxicating
Liquors § 121 at 501 (1981).
Other
factors may be considered when determining whether a location is proper. For
example, a liquor license shall not be granted if the place of business is within
300 feet (if within a municipality) or within 500 feet (if outside a
municipality) of any church, school, or playground. § 61-6-1820(3); §
61-6-120. Although the General Assembly did not provide absolute statutory
distance requirements for beer and wine permits as it did for liquor licenses,
the proximity to residences, churches, schools, and playgrounds may be
considered for beer and wine permits as well. § 61-4-520(6); Smith, 258
S.C. at 504, 189 S.E.2d at 301. Therefore, the decision as to whether the
proximity is improper for a beer and wine permit must be made on a case-by-case
basis resting upon the peculiar facts of each permit request.
Additionally,
consideration can be given to the impact the issuance of the permit or license
will have on law enforcement. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d
191 (1973); Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C.
451, 211 S.E.2d 243 (1975). Evidence that the granting of a permit will place
a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm’n, 308 S.C. 160, 162, 417
S.E.2d 555, 557 (1992). Denial is appropriate where the public areas
surrounding the proposed location have been the source of constant law
enforcement problems or significant problems with public intoxication. Roche,
263 S.C. at 451, 211 S.E.2d at 243. Another pertinent factor is whether police
have been summoned to the scene on prior occasions when licensed to another
party. Schudel, 276 S.C. at 141-42, 276 S.E.2d at 309-10. It is
relevant whether the location is near other locations that have either been a
constant source of law enforcement problems or are locations where young people
congregate and loiter. Palmer, 282 S.C. at 250, 317 S.E.2d at 478.
Similarly,
consideration can be given to whether the location is heavily traveled or
creates a traffic danger. Id. Furthermore, whether the location has in
the recent past been permitted and whether the location is now more or less
suitable than it was in the past is a relevant factor. Taylor v.
Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Finally, a valid consideration
is whether the surrounding area is substantially commercial. Id.; Byers
v. S.C. Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
Without
sufficient evidence of an adverse impact on the community, a permit or license
application must not be denied if the statutory criteria are satisfied. The
fact that the issuance of a permit or license is protested is not a sufficient
reason, by itself, to deny the application. See 48 C.J.S. Intoxicating
Liquors § 119 (1981). Moreover, the denial of a permit or license to an
applicant on the ground of unsuitability of location is without evidentiary
support when relevant testimony of those opposing the requested license or
permit consists entirely of opinions, generalities, and conclusions not
supported by the facts. Taylor, 261 S.C. at 171, 198 S.E.2d at 802.
c. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds the proposed location to be suitable as long as certain conditions
are met. The evidence clearly shows that the location has had significant problems
with crime and violence in the past. However, it also indisputably shows that
the owners have made changes to the club’s operations that have resulted in
positive changes and a dramatic decrease in criminal activity and other
problems. The Protestant testified that it would “go along” with the
application as long as the lights, cameras, and effective security staff remained
in place and the music level is reduced. Moreover, the Petitioner consented to
reasonable limitations being placed on the permit and license. The court finds,
based on those representations and on the evidence presented, that such
restrictions are necessary to ensure that the location will have adequate
police protection and will not endanger or disturb the community.
The
proposed location is not within 500 feet of any church, school, or playground and
thus does not violate the statutory prohibition for the sale of liquor by the
drink. Nonetheless, the court finds that its proximity to occupied residential
apartments makes it unsuitable for music that is audible more than 500 feet
away from the club when its doors are closed. See S.C. Code Ann. §
61-4-520(6) (Supp. 2005); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301
(1972); Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243,
246, 407 S.E.2d 653, 655 (1991) (holding that proximity to a residence is by
itself sufficient to support a finding of unsuitability and denial of a permit).
Thus,
the court finds that for the location to remain a suitable one, the Petitioner
must: (1) maintain adequate lighting and security cameras in the parking lot;
(2) continue to retain a licensed and bonded, effective security company; (3)
continue to prevent loitering outside the club and illegal activity both inside
the club and in the parking lot area; and (4) ensure that music is not
discernibly audible from the nearest residence to the club when the doors and
windows are closed.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that, with the above-noted restrictions, the Petitioner
meets all of the statutory requirements for the renewal of an on-premises beer
and wine permit and liquor by the drink license. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an on-premises
beer and wine permit and liquor by the drink license for the premises located
at 2605 Seminole Road, Suite H, Columbia, South Carolina 29210 in accordance
with § 61-2-80, § 61-4-540, and § 61-6-1820, subject to the Petitioner’s
entering a written agreement with the Department requiring the Petitioner to:
(1)
maintain adequate lighting and security cameras in the parking lot;
(2)
continue to employ a licensed and bonded, effective security company;
(3)
take reasonable measures to prevent loitering outside the club and illegal
activity inside the club and in the parking lot area; and
(4)
take reasonable measures to ensure that music is not discernibly audible from
the nearest residence to the club when the doors and windows are closed.
Violation
of any of the above-listed conditions shall be deemed a violation of the permit
and license.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
April 6, 2007
Columbia, South Carolina
The Department also denied the application
pursuant to § 61-2-160 because the Petitioner owed delinquent taxes, penalties,
or interest. At the hearing, the Department informed the court that
the Petitioner had satisfied its tax obligations, and therefore the Department
would have granted the application but for the public protest.
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