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, 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
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