ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Court (“ALC”)
for a final order and decision following a contested case hearing pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007), S.C. Code
Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007).
The petitioner, Zodiac Private Club (“Petitioner” or “Zodiac”), applied for an on-premises beer and wine permit pursuant to
S.C. Code Ann. §§ 61-4-500 et seq. (Supp. 2007) and a non-profit private
club liquor-by-the-drink license pursuant to §§ 61-6-1600 et seq. (Supp.
2007) for the location at 3897 North Road, Orangeburg, South Carolina 29115. Pastor Thomas Brookshire on behalf of Orangeburg Baptist Tabernacle, John E. Beaver,
Margaret Duffie, Leonard A. Pope, Bill Clark on behalf of the County of Orangeburg, Douglas E. Kessel, Donna J. Kessel, Charles Markowitz, and Jeanne
Markowitz (“Protestants”) filed written protests to the Petitioner’s
application. Respondent South Carolina Department of Revenue (“Department”)
denied the application pursuant to § 61-4-525 and § 61-6-1825 due to the
receipt of the Protestants’ valid public protests. The Department represented
that, other than the timely filed protests, the Petitioner met all of the other
statutory requirements. After notice to the parties and the Protestants, the
court held a hearing on this matter on April 8, 2008. Both parties and the
Protestants appeared at
the hearing. Evidence was introduced and testimony presented. After carefully
weighing all of the evidence, the court finds that the Petitioner’s application
for this location should be granted subject to the restrictions detailed below.
ISSUE
The only issue in dispute is the suitability of the
location. S.C. Code Ann. § 61-4-520(5)-(6); 61-6-1820; Schudel v. S.C.
Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
FINDINGS OF FACT
Having observed the witnesses and exhibits
presented at the hearing and closely passed upon their credibility, and taking
into consideration the burden of persuasion by the parties, the court makes the
following Findings of Fact by a preponderance of the evidence.
Evidence was presented regarding all of
the relevant statutory criteria. Notice of the time, date, place, and subject
matter of the hearing was given to all parties and the Protestants.
Mr. Jermaine Derricott (“Derricott”) is the principal member
of the business seeking the requested permit and license. He is over the age
of twenty-one and appears from the evidence presented to be of good moral
character. The business does not owe the state or federal government any
delinquent taxes, penalties, or interest. Notice of the application was
lawfully posted at the location and was published in a newspaper of general
circulation.
The Petitioner seeks a permit for the retail sale of
beer and wine for on-premises consumption and a
non-profit private club liquor-by-the-drink license for the location at 3897 North Road, Orangeburg, South Carolina 29115. Zodiac operates as a members-only,
by-invitation-only club and offers adult entertainment. The area in the
vicinity of the proposed location contains a convenience store, but is
substantially residential. The nearest residence is 231 feet from the proposed
location. There is no evidence that the area has problems with criminal
activity or that the police protection in the area is inadequate. Although
there was testimony that the club can hold up to 200 people, the Department’s
map showed there were only about twenty-five parking spaces.
Derricott and his associate, Eugene James, testified
during the hearing that the club has been open for six months, and has had no
incidents or fights. Derricott mentioned that other establishments in the
vicinity already have a beer and wine permit or liquor license.
The Protestants testified to various concerns with the
proposed location. Pastor Thomas Brookshire testified about his concerns
regarding noise coming from the club. Additionally, in Brookshire’s opinion,
serving alcohol at the club will make the area more dangerous because the
proposed location is located on a major highway and would potentially bring an
increase in crime to the community. Pastor Brookshire’s church is
approximately six-tenths of a mile from the proposed location. John E. Beaver
testified about his concern that the club would decrease local property values.
Also, Beaver felt that parking at the club was inadequate. Bill Clark,
speaking on behalf of the County of Orangeburg, stated that there had been an overwhelming outcry from local citizens regarding
the opening of the club due to its nature as a strip club. He further
testified that the County had passed a zoning ordinance that would have
prevented Zodiac from operating at the proposed location. However, because the
ordinance did not take effect until after Zodiac had already opened, Zodiac was
“grandfathered in” and is currently not in violation of any zoning ordinances.
Clark also testified about his concern for lack of parking at the proposed
location.
LAW
Based upon the foregoing Findings of Fact, the court
concludes the following as a matter of law.
1. Jurisdiction
Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[T]he issuance or granting of a license to sell beer or
alcoholic beverages rests in the sound discretion of the body or official to
whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic
Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App.
1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n,
269 S.C. 13, 235 S.E.2d 806 (1977). The weight and credibility assigned to
evidence presented at the hearing of a matter is within the province of the
trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. &
Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a
trial judge who observes a witness is in the best position to judge the witness’s
demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d
448, 450 (Ct. App. 1990).
2. Suitability of Location
a. Generally
Section 61-4-520 establishes the criteria for the
issuance of a beer and wine permit. Included in the criteria is the
requirement that the proposed location be a proper and suitable one. See § 61-4-520(5)-(6). Additionally, § 61-6-1820 sets forth the basic criteria for
the issuance of a liquor license. However, a liquor license may be denied if
the proposed location is not suitable. See Schudel, 276 S.C. 138,
276 S.E.2d 308. Therefore, either a beer and wine permit or a liquor license
may be denied if the location of the business is not a proper one.
b. Factors in Determining Proper Location
“Proper location” is not statutorily defined, but
broad discretion is vested in the trier of fact to determine the fitness or
suitability of a particular location for the requested permit. See Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). In determining
whether a proposed location is suitable, it is proper for this tribunal to
consider any evidence that shows adverse circumstances of location. Kearney
v. Allen, 287 S.C. 324, 326, 338 S.E.2d 335, 337 (1985); Palmer, 282
S.C. at 249, 317 S.E.2d at 478 (citing Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972)). The determination of suitability of location is not
necessarily solely a function of geography. Rather, it involves an infinite
variety of considerations related to the nature and operation of the proposed
business and its impact on the community within which it is to be located. Kearney, 287 S.C. at 326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276
S.E.2d at 308. Further,
a liquor license or permit may be properly
refused on the ground that the location of the establishment would adversely
affect the public interest, that the nature of the neighborhood and of the
premises is such that the establishment would be detrimental to the welfare . .
. of the inhabitants, or that the manner of conducting the establishment would
not be conducive to the general welfare of the community.
48 C.J.S. Intoxicating Liquors §
168 at 366 (2004).
Other factors may be considered when determining
whether a location is proper. For example, a liquor license shall not be
granted if the place of business is within 300 feet (if within a municipality) or
within 500 feet (if outside a municipality) of any church, school, or
playground. S.C. Code Ann. § 61-6-1820(3); S.C. Code Ann. § 61-6-120. Although
the General Assembly did not provide absolute statutory distance requirements
for beer and wine permits as it did for liquor licenses, the proximity to
residences, churches, schools, and playgrounds may be considered for beer and
wine permits as well. § 61-4-520(6); Smith, 258 S.C. at 504, 189 S.E.2d
at 301. Therefore, the decision as to whether the proximity is improper for a
beer and wine permit must be made on a case-by-case basis resting upon the
peculiar facts of each permit request.
Additionally, consideration can be given to the impact
the issuance of the permit or license will have on law enforcement. Fowler
v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); Roche v. S.C. Alcoholic
Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975). Evidence
that the granting of a permit will place a strain upon police to adequately
protect the community must be weighed. Moore v. S.C. Alcoholic
Beverage Control Comm’n, 308 S.C. 160, 162, 417 S.E.2d 555, 557 (1992).
Denial is appropriate where the public areas surrounding the proposed location
have been the source of constant law enforcement problems or significant problems
with public intoxication. Roche, 263 S.C. at 451, 211 S.E.2d at 243.
Another pertinent factor is whether police have been summoned to the scene on
prior occasions when licensed to another party. Schudel, 276 S.C. at
141-42, 276 S.E.2d at 309-10. It is relevant whether the location is near
other locations that have either been a constant source of law enforcement
problems or are locations where young people congregate and loiter. Palmer,
282 S.C. at 250, 317 S.E.2d at 478.
Similarly, consideration can be given to whether the
location is heavily traveled or creates a traffic danger. Id.
Furthermore, whether the location has in the recent past been permitted and
whether the location is now more or less suitable than it was in the past is a
relevant factor. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973). Finally, a valid consideration is whether the surrounding area is
substantially commercial. Id.; Byers v. S.C. Alcoholic Beverage
Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
S.C. Code Ann. § 61-4-580(5) (Supp. 2007) prohibits a
permittee from knowingly allowing “any act, the commission of which tends to
create a public nuisance or which constitutes a crime under the laws of this
state” to occur on the licensed premises. The term “licensed premises”
includes not only the interior of Zodiac, but also the areas immediately
adjacent to the entrance and exit, as well as the parking areas. See 23
S.C. Code Ann. Regs. 7-700 (Supp. 2007) (“Licensed premises shall include those
areas normally used by the permittee or licensee to conduct his business and
shall include but are not limited to the following: selling areas, storage
areas, food preparation areas and parking areas.”). “[O]ne who holds a license to sell alcoholic beverages is responsible
for supervising the conduct of his clientele, both within the licensed premises
and in the immediate vicinity, in order to ensure that his operations do not
create a nuisance for the surrounding community.” Dayaram Krupa, LLC v.
S.C. Dep’t of Revenue, 06-ALJ-17-0929-CC, 2007 WL 1219343 (S.C. Admin. Law Ct., March 19, 2007) (citing § 61-4-580(5) and A.J.C. Enters., Inc. v.
Pastore, 473 A.2d 269, 275 (R.I. 1984)). The
court in A.J.C. Enterprises held that a liquor licensee “assumes an
obligation to supervise the conduct of its clientele so as to preclude the
creation of conditions within the surrounding neighborhood which would amount
to a nuisance to those who reside in the area.” A.J.C. Enters., Inc.,
473 A.2d at 275. In the event that a licensed location becomes a public
nuisance to the surrounding community, the Department may revoke or refuse
renewal of the license for the location. See S.C. Code Ann. §
61-4-580(5).
Without sufficient evidence of an adverse impact on
the community, a permit or license application must not be denied if the
statutory criteria are satisfied. The fact that the issuance of a permit or
license is protested is not a sufficient reason, by itself, to deny the
application. See 48 C.J.S. Intoxicating Liquors § 166 (2004).
Moreover, the denial of a permit or license to an applicant on the ground of
unsuitability of location is without evidentiary support when relevant
testimony of those opposing the requested license or permit consists entirely
of opinions, generalities, and conclusions not supported by the facts. Taylor, 261 S.C. at 171, 198 S.E.2d at 802.
This court has no authority or jurisdiction to
determine whether a strip club can operate at the proposed location. It is
well settled that businesses offering such adult entertainment cannot be
prohibited. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (holding that adult entertainment is protected
under the First Amendment to the United States Constitution). Further,
local zoning matters are not within the purview of the ALC. See Heilker v. Zoning Bd. of Appeals for City of Beaufort, 346 S.C. 401, 412, 552 S.E.2d 42, 48 (Ct. App. 2001) (“The local zoning boards, and not the courts, are the primary entities responsible for the
planning and development of our communities”); see also S.C. Code Ann. § 6-29-820 (Supp. 2007) (stating
that circuit court has jurisdiction over appeals from zoning boards); § 6-29-950 (2004) (stating that circuit court has jurisdiction over enforcement of zoning violations). Moreover, South Carolina law clearly permits the sale of beer, wine, and liquor at a club that offers
topless dancing as entertainment. See S.C. Code Ann. § 61-4-580(4)
(beer and wine); § 61-6-1830(4) (liquor by the drink); see also John D. Geathers & Justin R. Werner, The Regulation of Alcoholic
Beverages in South Carolina 252 n.91 (2007) (“[U]nder these provisions, businesses licensed to sell
beer and wine for on-premises consumption or liquor by the drink . . . may
offer “topless” dancing as entertainment in their establishments.”).
c. Conclusions
After carefully weighing the evidence and applying the
law as discussed above, the court finds the proposed location to be suitable as
long as certain conditions are met. No evidence was presented of significant law
enforcement problems either at the proposed location or in the surrounding area.
Nor did the evidence show that the nature of the business as a so-called
“gentleman’s club” renders this particular location unsuitable for the sale of
beer, wine, or liquor. Applying the statutory
and regulatory instructions as to measurements for liquor licenses, the
proposed location is not within 500 feet of any church, school, or playground
and thus does not violate the statutory prohibition for the sale of liquor by
the drink. Therefore, the distance does not preclude a liquor license.
Nonetheless, the proximity of the proposed location to the church and
residences is a valid consideration with regard to the beer and wine permit,
and the court finds it appropriate to impose restrictions on the permit and
license sought to protect the health, safety, and peace of those nearby
residents.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that, with the following restrictions, the Petitioner
meets all of the statutory requirements for an on-premises beer and wine permit
and non-profit private club
liquor-by-the-drink license. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an on-premises beer and non-profit private club liquor-by-the-drink license for the
premises located at 3897 North Road, Orangeburg, South Carolina 29115, in
accordance with § 61-2-80, § 61-4-540, and § 61-6-1820, subject to the
Petitioner’s entering a written agreement with the Department requiring the
Petitioner to:
(1) maintain adequate security lighting in the parking
lot;
(2) maintain visible, effective personnel for security
purposes both inside and outside the club during its hours of operation;
(3) take reasonable measures to prevent loitering outside
the club and illegal activity inside the club and in the parking lot area;
(4) take reasonable measures to ensure that music or
noise from the club and its immediately surrounding areas is not discernibly audible
from the nearest residence to the proposed location when the doors and windows of
the residence are closed; and
(5) take reasonable measures to ensure that there is
adequate parking and that club patrons do not park without permission on
private property not owned or leased by Zodiac.
Violation of any of the above-listed conditions shall
be deemed a violation of the permit and license.
IT IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
April 30, 2008
Columbia, South Carolina
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