ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter came before the Administrative Law Court (ALC or Court) on Respondent’s
Motion for Rule To Show Cause (Motion for Contempt of Court) under ALC Rules 19
and 68, S.C. Code Ann. § 1-23-630(A) (Supp. 2007), and Rule 65(f), SCRCP. The
South Carolina Department of Revenue (Department) seeks a revocation of
Caldwell Entertainment’s (Petitioner) liquor by the drink license and beer and
wine permit for Club Evolution located at 1325 Longcreek Drive, Columbia, South
Carolina. The Department also seeks civil and criminal penalties against
Petitioner for Contempt of Court. After notice of the date, time, place, and
nature of the hearing was timely served upon all parties, a hearing was held
before me on February 14, 2008, at the offices of the ALC. The Department was
represented by Craig M. Pisarik, Esq. The Petitioner did not appear.
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 persuasion by the parties, I make the following Findings of Fact
by a preponderance of the evidence:
1. On
June 28, 2007, following an evidentiary hearing on a public protest of the
renewal of a liquor by the drink license and beer and wine permit held by the
Petitioner, this Court issued a Final Order (Order). The Order conditionally
renewed Petitioner’s license and permit for the location, 1325 Longcreek Drive,
Columbia, South Carolina, but placed 10 separate restrictions on the license
and permit. The Court further ordered Petitioner to enter into a signed written
agreement with the Department placing the same 10 restrictions on the license
and permit.
2. On
July 3, 2007, Dechrisha A. Caldwell, as sole corporate shareholder for Caldwell
Entertainment, Inc., d/b/a Club Evolution, entered into an “Agreement as to
Restrictions per ALJD Order 07-ALJ-17-0123-CC” with the Department.
3. The
provisions of the Order and Restrictions Agreement provided, in part, as
follows:
Such existing
permit and license should be renewed subject to the following restrictions:
a. Operating
Hours: Club Evolution may open for business no earlier than 6:00 p.m. and
shall close by 1:30 a.m. on nights of operation as allowed under the laws of
this State for a beer and wine permit and business liquor by the drink
license. The Club will stop selling alcohol at 1:00 a.m. on these evenings.
In the absence of a Local Option Permit providing for alcohol sales on Sundays,
Club Evolution shall close at midnight on Saturday evenings.
b. Age of
Admission: Patrons must be at least 23 years of age to enter Club
Evolution. Club personnel must check the identification of persons to verify
age before patrons are allowed to enter the premises.
c. Security:
Club Evolution must increase its current security staff of four guards by at
least two. Guards will be tasked with, including, but not limited to, policing
parking areas, ensuring that patrons are parked only in designated club parking
areas, and keeping outside noise to a minimum.
d. Noise:
Noise outside and inside Club Evolution will be monitored and kept to a
minimum.
e. Crowd
Size: Club Evolution will keep crowd size at or below maximum occupancy
pursuant to fire marshal regulations.
f. Parking:
Club Evolution patrons must park in designated club-parking areas only.
Patrons will not park in any non-club parking lot, including, but not limited
to, parking lots owned by Mr. Darrell Jabour, the Hollows Apartments, and any
other nearby apartment complex parking lots.
g. Earl Cooper will
not be involved in the management of Club Evolution or have any
responsibilities regarding the operations of the Club.
h. Club Management
will meet with Capt. Plexico of the Richland County Sheriff’s Department, at a
place designated by him, at least once a month regarding club safety and any
other concerns.
4. After
issuance of the Order to renew Petitioner’s license and permit subject to the
above restrictions, the Richland County Sheriff’s Department filed 26 separate
“Incident Reports,” documenting violations of the license and permit
restrictions from July 7, 2007 through February 10, 2008.
5. The
Incident Reports document 53 violations of the Court’s Order and the signed
Restrictions Agreement, including 23 violations of the Hours of Operation
restriction, 6 violations of the Age of Admission restriction, 2 violations of
the Security restriction, 7 violations of the Noise restriction, and 15
violations of the Parking restriction.
6. The
Incident Reports also document 21 other incidences taking place at Club
Evolution, including 5 incidences of fighting, 10 incidences of gun possession
or gun shots fired, 3 incidences of drug possession or drug use, and 3
incidences of causing property damage or leaving trash on neighboring
properties.
7. On
February 14, 2007, prior to the incidences at Club Evolution, this Court
revoked Petitioner’s liquor by the drink license and beer and wine permit for
Club Liquids, located at 5511 Forest Drive, Columbia, South Carolina, for
violating restrictions placed on the license and permit.
8. On
December 18, 2007, the Department filed a Notice of Motion and Motion for Rule
to Show Cause (Motion for Contempt of Court), Petition in Support of Notice of
Motion and Motion for Rule to Show Cause, and Verification in Support of these
Motions. On January 11, 2008, the Department served Petitioner, by personal
service, with a copy of these Motions, including the place, date, and time of
the hearing.
9. On
February 11, 2008, Petitioner forfeited its liquor by the drink license and
beer and wine permit for Club Evolution by surrendering the same to the
Department.
10. The
sole shareholder of Caldwell Entertainment is Dechrisha Caldwell. Her husband,
Bryant Caldwell, testified at the May 16, 2007 renewal hearing that he also had
a management role in the operations of Club Evolution.
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 ALC to hear contested cases under the Administrative
Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2007) grants
the ALC the authority to hear contested case hearings in matters governing
alcoholic beverages, beer, and wine.
2. Permits and licenses issued by this State for the
sale of liquor, beer, and wine are privileges to be used and enjoyed only so
long as the holder complies with the restrictions and conditions governing
them. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26
S.E.2d 22 (1943).
3. Here, Petitioner blatantly and repeatedly violated
the Court’s June 28, 2007 Order and the signed Restrictions Agreement between
the dates of July 7, 2007, and February 10, 2008. The Incident Reports, along
with testimony from Richland County Sheriff’s Captains Robert Plexico and Joe
Shampine and neighboring property owners and managers Darrell Jabour and Allison
Bass, show an egregious pattern of violations displaying Petitioner’s lack of
control over Club Evolution, as well as, its lack of respect for its neighbors,
the Sheriff’s Office, and this Court. Captain Plexico and Captain Shampine testified
to changes the Sheriff’s Department has been forced to make as a result of the
problems at Club Evolution. Neighboring property owners and managers, Mr. Jabour
and Ms. Bass, described numerous violations of the Parking restrictions, as
well as, property damage and an inability to sell their property due to the constant
problems at Club Evolution.
4. Allowing Petitioner to escape responsibility by forfeiting
its alcohol license and permit before the scheduled Rule to Show Cause/Contempt
of Court hearing would suggest that future license holders can ignore this
State’s laws and ALC orders without threat of sanction. As such, I find that Petitioner’s
license and permit to serve liquor, beer, and wine at Club Evolution are hereby
revoked. This revocation is to have the same legal effect as if Petitioner
still held the subject license and permit. The revocation shall further be
effective as to Petitioner’s sole shareholder, Dechrisha Caldwell, and her
husband, Bryant Caldwell, who exercised management authority for Club
Evolution.
5. I further find Petitioner in Contempt of Court. The
excessive number and frequency of violations show Petitioner’s deliberate disregard
for the Court’s Order. Petitioner’s lack of respect for this Court is further evidenced
by its absence at the February 14, 2008 hearing. The present violations further
indicate that the previous revocation of Petitioner’s alcohol license for Club
Liquids alone was not a sufficient deterrent for violating this Court’s Orders.
Therefore, Petitioner is ordered to pay a fine of $200.00 per violation of the
Court’s June 28, 2007 Order, a total fine of $10,600.00.
6. In addition to testimony regarding Petitioner’s
violations, Captain Plexico, Captain Shampine, Mr. Jabour, and Ms. Bass testified
to the history of problems at 1325 Longcreek Drive. These problems have been
facilitated by the inadequacy of the location, including, but not limited to,
its small size, limited parking spaces, and the residential character of the
neighborhood. I find that the subject location is undesirable for creating a
nightclub establishment, similar to Club Evolution. I further find that all
future alcohol license and permit applications for this location should be
closely scrutinized to determine the character and nature of the proposed establishment.
If evidence suggests that a future applicant intends on creating a nightclub, the
Court shall seriously consider denying or applying rigid restrictions to the
license and permit unless a clear showing is made to the contrary.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of
Law,
IT IS HEREBY ORDERED that Petitioner’s liquor by the
drink license and beer and wine permit for Club Evolution at 1325 Longcreek
Drive, Columbia, South Carolina, are revoked.
IT IS FURTHER ORDERED that Petitioner is in Contempt
of Court and shall pay a $200.00 fine for each of the violations of the Court’s
June 28, 2007 Order, for a total of $10,600.00, to the Department no later than
thirty (30) days after the date of this Final Order and Decision.
IT IS FURTHER ORDERED that this location is unsuitable
for nightclubs and establishments similar to Club Evolution and that all future
alcohol license and permit applications should be closely scrutinized to
determine the nature and character of the establishment.
IT IS FURTHER ORDERED that, if possible, any
further contested alcohol license and permit applications at 1325 Longcreek Drive, Columbia, South Carolina, be assigned to the undersigned because of his
knowledge of the prior applications there.
AND
IT IS SO ORDERED.
___________________________
February 25, 2008 JOHN
D. MCLEOD, Judge
Columbia, SC Administrative
Law Court
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