SC Administrative Law Court Decisions

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.^[1] §§ 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