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 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.
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).
ORDER
Based
upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit and liquor by
the drink license of Club 273 A be granted upon Petitioner entering into a
written agreement with the Department incorporating the restrictions set forth
below:
1. At least five (5) security
guards from a SLED certified security company must be on duty on the outside of
the club at all times there are patrons on the premises.
2. At least five (5) private
security guards must be on duty inside of the building during all hours of
operation.
3. Petitioner must install four
(4) security cameras on the outside of the building and four (4) security
cameras on the inside of the building.
4. The Petitioner shall only be
open between the hours of 10 p.m. and 3 a.m. on Friday nights and 10 p.m. and 2
a.m. on Saturday nights.
5. Petitioner may only allow
patrons over the age of thirty (30) to enter the licensed premises.
IT
IS FURTHER ORDERED that a violation of the above restrictions will be
considered a violation against the permit/license and may result in a fine,
suspension or revocation.
IT
IS FURTHER ORDERED that the Department resume processing Petitioner’s
application and issue an on-premise beer and wine permit and private club
liquor by the drink license to the Petitioner upon a satisfactory final
inspection and payment of the proper fees and costs.
AND IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
December 3, 2008
Columbia, South Carolina
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