SC Administrative Law Court Decisions

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 nonprofit private club liquor by the drink license for Club 273A. After proper notice, a hearing was held on November 5, 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 Leyton Stover seeks an on-premise beer and wine permit and private club liquor by the drink license for Club 273 A, located at 139 Twilight Road, #A, Lancaster, 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 nightclub between the hours of 10 p.m. and 3 a.m. on Friday nights and between the hours of 10 p.m. and 2 a.m. on Saturday nights. Those two nights would be the only times Petitioner would be open. He would have five uniformed security guards from Day by Night Security, a SLED certified security company, on the outside from open to close as well as five private security guards on the inside. The inside security guards would have a metal detection wand to use on all patrons. Petitioner would not allow anyone under the age of thirty to enter the club. He would also instruct the outside security guards to not allow any loitering in the parking lot.

4. The Lancaster Sheriffs Department protested the issuance of this permit and license. The Protestants contend that their have been a multitude of incidents at the previous locations that have overwhelmed the Sheriffs Department. More specifically, they contend that:

·                     Most incidents occur on the outside within the boundaries of a 10 foot barbed wire fence that surrounds the property. The layout of the parking lot makes it dangerous to send one patrol car into the lot before back up arrives;

·                     The location has been a burden upon law enforcement because of the numerous calls to which law enforcement has had to respond. There are currently only 12 officers per shift and they have a patrol area of approximately 500 square miles;

·                     Officers fear for their safety when they have to respond to a call at the location;

There have been a litany of incidents that have occurred on the premises over the past few years. Those problems include assault and battery, drug charges, arson, shots fired, and murder. 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.

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 five outside security officers at all times the nightclub is open on Friday and Saturday nights. He intends to hire five more security personnel as bouncers for inside of the building. Petitioner furthermore intends to install four security cameras on the outside of the building as well as four on the inside. He will provide a live feed from the security cameras to a secure website, to which the Sherriff’s Department will have access.

This location most certainly has the potential to be a burden on law enforcement and a nuisance to the community. However, if operated as Petitioner testified, with security personnel, security cameras, a no loitering policy, and a thirty year old age requirement, I find that the proposed location is suitable for an on-premise beer and wine permit and private club liquor by the drink license. However, if even one of these security measures is not taken, the location will no longer be suitable.

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. 2007) 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. 2007) 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.