SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant to a motion filed by the South Carolina Department of Revenue (Department) for an emergency suspension of the Respondent’s on-premise beer and wine permit (permit) and mini-bottle license (license) for its premises at 1900 North Kings Highway, Myrtle Beach, South Carolina. The Department has decided to seek permanent revocation of the permit and license on the ground that the location is a public nuisance. While that matter is pending, the Department seeks injunctive relief in the form of an emergency suspension of the permit and license.

After notice to the parties, a hearing was held at the offices of the Division in Columbia, South Carolina, on Thursday, March 18, 2004. The Respondent, through its attorney, Russell B. Long, Esquire, notified the Division in writing that it would not contest the Department’s motion. After a thorough review of the file and the evidence presented at the hearing, I find and conclude that injunctive relief in the form of an emergency suspension of the permit and license should be granted.

FINDINGS OF FACT

1.The Division has personal and subject matter jurisdiction.

2.Notice of the date, time, place and nature of the hearing was timely given to all parties. The Respondent waived its right to be present and present evidence at the hearing.

3.The Respondent holds an on-premises beer and wine permit (32030220-PBW) and a business/restaurant sales and consumption (mini-bottle) license (32030220-PSB) for the location at 1900 North Kings Highway.

4.Static Entertainment Corporation (Static) is a South Carolina corporation owned by Darren Schiffman, Antonio Cefalu and Wesley Zaba. Static operates as a restaurant and nightclub from approximately 10:00 p.m. to 4:00 a.m.

5.Static is located in the business district of Myrtle Beach, directly adjacent to a residential area.

6.The Myrtle Beach Police Department contacted the South Carolina Department of Revenue due to the large number of complaints at the location. Since the location at 1900 North Kings Highway, Myrtle Beach, South Carolina, was licensed on February 18, 2003, for on-premises sales and consumption of liquor, beer and wine, officers of the Myrtle Beach Police Department have responded to the following violent incidents at that address, either inside the Club or in the adjoining parking lot:

In reverse chronological order

2/28/04Assault and battery with intent to kill (shooting);

2/19/04Firearm discharge;

2/14/04Fighting;

2/8/04Unlawful carrying of firearm; assault and battery with intent to kill;

2/5/04Grand larceny of an automobile;

1/31/04Minor in possession of beer or wine;

1/17/04Possession of marijuana; public intoxication;

1/3/04Simple assault and battery;

1/1/04Possession of cocaine and marijuana; open container (four counts); minor in possession

of beer;

12/30/03Carjacking; armed robbery; kidnapping;

12/27/03Assault and battery with intent to kill (stabbing); disorderly conduct (two counts); simple

assault and battery;

12/26/03Carjacking; armed robbery; kidnapping;

12/25/03Possession of crack cocaine with intent to distribute; disorderly conduct/public

intoxication;

12/18/03Trafficking in crack cocaine; possession of marijuana;

11/1/03Simple assault and battery;

10/14/03Disorderly conduct/public intoxication;

10/11/03Assault on a police officer; attempted assault on a police officer; possession of marijuana

(three counts);

9/13/03Possession of crack cocaine with intent to distribute; possession of marijuana;

9/7/03Criminal domestic violence; possession of marijuana;

8/24/03Shooting incident; assault and battery of a high and aggravated nature; simple assault and

battery;

8/16/03Disorderly conduct; resisting arrest (two counts).

In the most recent incident, officers of the Myrtle Beach Police Department responded on February 28, 2004, when a bouncer employed by the Club was shot by an assailant who attempted to enter the Club accompanied by three or four others.

The Respondent has made attempts to improve security inside the location, but not outside the location. Despite these efforts, problems have continued to occur at this location.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1.The Division has jurisdiction over this matter pursuant to Sections 1-23-600 and 61-2-360, S.C. Code Ann.

2.Pursuant to Section 1-23-630, S.C. Code Ann., an Administrative Law Judge within the Division has the power to grant injunctive relief.

3.S.C. Code Section 1-23-370(c) provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

See also S.C. Code Ann. §12-60-1340.

4.S.C. Code Ann. Section 61-4-580 provides, in pertinent part:

No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder’s permit:

(5) permit any act, the commission of which tends to create a public nuisance or which constitutes a crime under the laws of this State … .

A violation of any provision of this section is a ground for the revocation or suspension of the holder’s permit.

5.“Knowingly” is defined as “including, not only actual knowledge of the contents of the subject matter of the material, but also knowledge of its contents which could have been gained by reasonable inspection, when the circumstances are such as would have put a reasonable man on inquiry.” State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549, 554 (1975) (citing Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943)). One who “shuts his eyes to avoid knowing what would otherwise be obvious” may be deemed to knowingly violate the statute. Id. In short, the statutory definition of “knowingly” includes both (1) actual knowledge of the subject matter, and (2) “situations where a person has such information, or the circumstances are such, as would lead a prudent man to form a belief as to the subject matter of the material, and if followed by inquiry would have disclosed its character.” Id.

6.S.C. Code Ann. Section 61-6-1820(2) requires that a corporation holding a mini-bottle license have “a reputation for peace and good order in its community, and [that] its principals [be] of good moral character.” Failure to meet this requirement constitutes grounds for revocation of the license. S.C. Code Ann. §61-6-1830.

The evidence shows that law enforcement officers responded to complaints of crimes and violent incidents on at least 21 separate occasions during a seven-month period. Several of the incidents, including the shooting of the Licensee’s employee on February 28, 2004, have been life-threatening. This Department has made a prima facie showing that these incidents have created a public nuisance. In view of the number and nature of the crimes and violent incidents occurring at the licensed premises over a seven-month period, there is prima facie evidence that the Respondent has knowingly permitted a public nuisance on the licensed premises.

Furthermore, public safety and welfare imperatively requires emergency action. The Respondent’s efforts to prevent crime and violent activity from occurring on the licensed premises have been ineffective. The continued sale of beer and wine and mini-bottles at this location will only exacerbate the occurrence of criminal incidents at the location and continue to put the public safety and welfare at risk. Therefore, I find and conclude that emergency suspension is warranted to protect the public safety and welfare.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the on-premises beer and wine permit and mini-bottle license issued to the Respondent for its premises located at 1900 North Kings Highway, Myrtle Beach, South Carolina, is hereby SUSPENDED.

AND IT IS SO ORDERED.

_________________________________

C. DUKES SCOTT

Administrative Law Judge

March 18, 2004

Columbia, South Carolina