South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Candice Rhodriguez, d/b/a Fusion vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Candice Rhodriguez, d/b/a Fusion

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0354-CC

APPEARANCES:
For the Petitioner:
John Mobley, Esquire

For the Respondent:
Andrew Richardson, Esquire

For the Protestants:
Lisa Brink, Esquire, Captain Joseph Shampine, and Darrell Jabour
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 61-2-90 & 61-2-260 (Supp. 2007) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2007) for a contested case hearing. Petitioner is seeking an on-premises beer and wine permit and liquor by the drink license for Fusion. After proper notice, a hearing was held on September 11, 2008 at the offices of the ALC in Columbia, South Carolina.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of proof upon the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner Candice Rhodriguez seeks an on-premise beer and wine permit and liquor by the drink license for Fusion, located at 1325 Longcreek Drive, Columbia, South Carolina.

2. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2007) concerning the residency and age of Petitioner were properly established. Petitioner also has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation. Furthermore, the proposed location is not unreasonably close to any church, school, or playground.

3. Petitioner proposes to operate a restaurant,[1] bar, and nightclub between the hours of 10 p.m. and 3 a.m. Friday and Saturday nights, and from 6 p.m. until no later than 3 a.m. Monday through Thursday. On Friday and Saturday nights she will move the tables off of the floor so as to create a dance club. Entertainment will be in the form of a DJ who plays hip hop, R&B, and reggae music.

4. The Protestants included the Richland County Sheriffs Department, The Hollows (a nearby apartment complex) and an adjacent business owner. The Protestants contend that the operation of the previous nightclub at this location and the operation of Petitioner’s business at this location while she held a temporary permit and license have adversely affected the local residents and law enforcement. More specifically, they contend that:

·                     Patrons of the location frequently park along the street and in the parking area of local businesses and residence because the location does not have adequate parking;

·                     The location has been a burden upon law enforcement because of the numerous calls to which law enforcement has had to respond;

·                     The patrons of the club have created noise which has disturbed the residents;

·                     The location has been a constant source of litter.

Both the previous establishment, as well as Fusion, have been a nuisance to the residents of The Hollows. There are problems with noise late at night when the club closes and trash on the apartment grounds. Furthermore, an apartment security officer must frequently ask patrons of Fusion to move their vehicles from The Hollows parking lot.

Moreover, there have been numerous law enforcement problems at the proposed location and in the immediate vicinity over the past several years. Those problems include disorderly conduct, vandalism, assault and battery, and shots fired. Dating back to June of 2001, there have been nearly 200 incident reports filed by the Richland County Sheriff’s office. This year alone there were 39 incident reports filed. The frequency of incidents has become a burden on law enforcement because of the number of calls they must respond to, which in turn takes law enforcement away from other areas they are needed. The Sheriff’s Department has also received numerous complaints from residents in the area regarding noise, trespassing, and suspicious persons. Residents of the area no longer feel safe.

Petitioner contends that she will have adequate parking for the approximately three hundred patrons of this location. However, there is parking for only approximately 60 vehicles on the premises. Petitioner contends that she has entered into a lease to also use a vacant lot next to this location to handle overflow parking. Nonetheless, that lot has parking for only an additional 80 vehicles. Moreover, Petitioner does not have a written lease to use that property.

In regard to the law enforcement problems that have occurred at this location, Petitioner has entered into a contract with Day and Night Protective Services to provide four outside security officers for at least five hours on Friday and Saturday nights. She intends to hire four more security personnel as bouncers for inside of the building. However, the parking, litter, and crowd management are all problems that plagued the previous location, even with an earlier closing time and more security guards than proposed by Petitioner for this establishment. Therefore, Petitioner failed to establish that she will take enough security measures so as to not be a burden on law enforcement.

In sum, the proposed location has a long history of being a nuisance to the community. Specifically, I find that the location poses a potential burden on law enforcement and will create an adverse impact upon the community that was allayed by this Court’s revocation of the previous owners permit and license. Therefore, I find that the proposed location is unsuitable for an on-premise beer and wine permit and liquor by the drink license.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2005) grants the Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. Generally, no license or permit may be issued unless the applicant is the owner of the business seeking the permit or license and “the person and all principals are of good moral character.” S.C. Code Ann § 61-2-100 (Supp. 2007). S.C. Code Ann. § 61-4-520 (Supp. 2006) also sets forth the requirements for the issuance of a beer and wine permit. Section 61-4-520(5) provides that the location of the proposed place of business must be a proper one. Furthermore, Section 61-4-520(6) provides that in making that determination, the Department, and thus the ALC, “may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches.”

3. In addition, a license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2006) are met. Section 61-6-1820(1) provides that the applicant may receive a license upon the finding that “[t]he applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.” Section 61-6-1820(2) further provides that a license for the sale and consumption of alcoholic beverages must not be granted unless an individual applicant is of good moral character or, if the applicant is a corporation or association, it “has a reputation for peace and good order in its community, and its principals are of good moral character.” S.C. Code Ann. § 61-6-1820(2) (Supp. 2007).

4. Neither a license for the sale and consumption of alcoholic beverages nor a beer and wine permit is a contract or a property right. It is, rather, a privilege granted in the exercise of the State's police power “to do what otherwise would be unlawful to do. . . .” Feldman v. South Carolina Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2005) set forth the requirements for the issuance of a beer and wine permit. In particular, Section 61-4-520(6) vests the Administrative Law Court, as the trier of fact, with the authority to determine if the proposed place of the applicant’s business is a “proper” one.


Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). The strain upon law enforcements ability to adequately protect the community is a reason to deny a permit. Moore v. South Carolina Alcoholic Beverage Control Com'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

5. This location has proved to be problematic both under the previous owner, and during the time Ms. Rhodriguez has operated Fusion. A nuisance is a substantial and unreasonable interference with the use and enjoyment of ones property. O'Cain v. O'Cain, 322 S.C. 551, 473 S.E.2d 460 (Ct. App. 1996). “It is anything which hurts, inconveniences, or damages; anything which essentially interferes with the enjoyment of life or property.” 473 S.E.2d at 466. To constitute a public nuisance, a nuisance must be in a public place or where the public frequently congregates, or where members of the public are likely to come within the range of its influence. Neal v. Darby, 282 S.C. 277, 318 S.E.2d 18 (Ct. App. 1984). “The difference between a public nuisance and a private nuisance does not consist in any difference in the nature or character of the thing or activity itself.” Home Sales, Inc. v. City of North Myrtle Beach, 299 S.C. 70, 382 S.E.2d 463 (Ct. App. 1989). In other words, “[a] nuisance is public because of the danger to the public which might have been created.” Home Sales, Inc. v. City of North Myrtle Beach, 299 S.C. 70, 382 S.E.2d 463 (Ct. App. 1989). However, it is not based on “the number of persons annoyed, but the possibility of annoyance to the public by invasion of its rights, the fact that it is in a public place and annoying to all who come within its sphere.” Belton v. Wateree Power Co., 123 S.C. 291, 115 S.E. 587 (1922). Furthermore, whether an act(s) constitutes a nuisance depends upon the facts of the case and “no definite rule can be laid down for the determination of the question.” Winget v. Winn-Dixie Stores, Inc., 242 S.C. 152, 130 S.E.2d 363 (1963). S.C. Code Ann. § 61-6-1820 (Supp. 2005) requires that an applicant for a restaurant license must have a “reputation for peace and good order in its community.”

Therefore, I find that Petitioner failed to establish that the location is suitable to receive either a permit or license.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Petitioner's application for an on-premise beer and wine permit and liquor by the drink license be denied.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

September 24, 2008

Columbia, South Carolina



[1] Petitioner testified that she will serve up to three hundred patrons at her location . However, she currently has one microwave for food service from which she will prepare the meals herself


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