ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The above-captioned case comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005) for a contested case hearing. Petitioner Blink, Inc., seeks the renewal of the on-premises beer and wine permit and restaurant minibottle license for its nightclub, The Freaky Tiki, located at 708A North Ocean Boulevard in Myrtle Beach, South Carolina. Respondent South Carolina Department of Revenue (Department) would have granted the renewal of Petitioner’s permit and license but for the protests filed by several neighboring property owners regarding the suitability of the location of Petitioner’s club. In particular, the protestants oppose the renewal of Petitioner’s permit and license because of the adverse impact the operation of Petitioner’s club has upon their nearby hotels, one of which adjoins Petitioner’s property. After timely notice to the parties and the protestants, a hearing of this matter was held on September 29, 2005, at the Administrative Law Court in Columbia, South Carolina. Based upon the applicable law and the evidence presented regarding the nature of Petitioner’s operations, I find that Petitioner’s applications for the renewal of its beer and wine permit and minibottle license must be denied.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:
1. On April 28, 2005, Petitioner Blink, Inc., submitted applications to the Department for the renewal of its on-premises beer and wine permit and restaurant minibottle license for its nightclub, The Freaky Tiki, located at 708A North Ocean Boulevard in Myrtle Beach, South Carolina. These applications and the Department’s file on the applications are hereby incorporated into the record by reference.
2. The Freaky Tiki is located in downtown Myrtle Beach on a portion of Ocean Boulevard known as “The Strip.” The club is situated in the heart of a heavily commercial area, with numerous bars, restaurants, retail shops, and nightclubs located across from and to the north of the club, and several hotels, including the Chesterfield Inn, the Diplomat Hotel, and the Beverly Hotel, located just to the south of the location. The Chesterfield Inn and its parking lot immediately adjoin The Freaky Tiki and are separated from the club by a low brick wall.
3. The Freaky Tiki operates seasonally as a “high-energy dance club” that promotes itself as a venue for drinking, dancing, and general nightclub partying. In addition to such revelry, the club also regularly offers sexually provocative entertainment, such as wet t-shirt contests and other risqué events. The Freaky Tiki is a large nightclub, with some five thousand square feet of space for its patrons and a maximum capacity of over seven hundred patrons. These patrons routinely line up for over an hour to get into the club, and, upon the club’s closing at 3:00 a.m., all of the club’s remaining patrons exit onto the sidewalk in front of the club. Most of the adverse impact on neighboring properties caused by the operations of the Freaky Tiki is directly related to the mass of patrons entering and exiting the club during the evening.
4. At the hearing, the protestants in this matter, all owners of hotels adjoining or near the Freaky Tiki, focused particularly upon the problems caused by the club when it releases its patrons onto the street at closing time in the early morning hours. For example, the protestants vividly described the fights, public urination and vomiting, public drunkenness, disorderly conduct, vandalism, noise, and trespassing that occur on a nightly basis as the club’s patrons are released onto the street at closing time. In particular, Karon Mitchell of the Chesterfield Inn, which is adjacent to the Freaky Tiki, testified to nightly incidents of fights on her property, vandalism of her property and the property of her guests, public urination and vomiting on or near her property, and other problematic behavior caused by the mass of intoxicated and disorderly patrons exiting the Freaky Tiki at its closing time in the early morning hours. In order to address such problems, the Myrtle Beach Police Department routinely dispatches a number of police officers, with cruisers, paddy wagons, and bicycles, to the Freaky Tiki at closing time in an attempt to control the patrons leaving the club each night.
5. The Freaky Tiki is currently closed pursuant to an Order for Temporary Injunction issued by the Honorable J. Stanton Cross, Jr., Master-in-Equity for Horry County, upon the motion of the Myrtle Beach Police Department. See Protestants’ Ex. #7 (Order for Temporary Injunction, South Carolina ex rel. Gall v. Blink, Inc., No. 2005-CP-26-4434 (S.C. Ct. Com. Pl., 15th Cir., Sept. 19, 2005)). In the Order, the court concluded that, under its recent operations, the Freaky Tiki constituted a public nuisance in violation of S.C. Code Ann. § 15-43-10 et seq. (2005). Specifically, based upon testimony similar to that presented in this case, the court found that, “by reviewing Freaky Tiki’s environment which encourages lewd and sexual acts among its patrons, encourages . . . the consumption of alcohol by its patrons, including those not old enough to legally consume alcohol, and encourages conduct that causes its patrons to engage in conduct that constantly breaches the public peace upon leaving the Club, there is no doubt the Freaky Tiki itself, and not merely Respondents alone, is the public nuisance.” See Protestants’ Ex. #7, at 8.
6. Simply put, as it has recently been operated, the Freaky Tiki constitutes a public nuisance to the people of Myrtle Beach generally and, particularly, to both the proprietors and guests of nearby hotels, whose property, persons, and peace of mind are routinely threatened by the intoxicated patrons of the Freaky Tiki as they exit the club in the early morning hours. Moreover, despite Petitioner’s suggestions, I cannot find that the placement of a single security guard, even if uniformed, at the property line between the Freaky Tiki and the Chesterfield Inn would abate the nuisance created by the Freaky Tiki in any meaningful way.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).
2. “[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).
3. S.C. Code Ann. § 61-4-520 (Supp. 2004) 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 id. § 61-4-520(6)-(7).
4. S.C. Code Ann. § 61-6-1820 (Supp. 2004) sets forth the basic criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
5. Although “proper location” is not statutorily defined, 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).
6. The determination of suitability of location is not necessarily a function solely 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 v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
7. 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, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
8. “[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 § 121, at 501 (1981).
9. The denial of a license to sell alcoholic beverages is appropriate where the proximity of the proposed outlet to areas of public congregation would aggravate problems related to the consumption of alcohol in public. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding the denial of a retail beer and wine permit where the applicant’s property was already the site of congregations of people attended by some consumption of alcohol and disorder). Such denial is particularly appropriate when the public areas surrounding the proposed location have been the source of constant law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975) (upholding the denial of a retail beer and wine permit upon evidence that local law enforcement had constant problems with public intoxication in the vicinity of the applicant’s store).
10. Further, one 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. See, e.g., S.C. Code Ann. § 61-4-580(5) (Supp. 2004) (prohibiting a beer and wine 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); see also A.J.C. Enterprises, Inc. v. Pastore, 473 A.2d 269, 275 (R.I. 1984) (holding that, upon licensure, 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”). And, where a licensed location becomes a public nuisance to the surrounding community, the licensing authority is generally authorized to revoke or to refuse renewal of the license for the location. See, e.g., S.C. Code Ann. § 61-4-580(5); Yu v. Alcoholic Beverage Control Appeals Bd., 4 Cal. Rptr. 2d 280, 286-87 (Ct. App. 1992) (noting that a liquor licensee is “charged with preventing his premises from becoming a nuisance” and holding that a liquor license may be revoked where the licensed premises have “essentially become a public nuisance”); see also Commonwealth ex rel. Ness v. Keystone Sign, Co., 513 A.2d 1066, 1067-68 (Pa. Super. Ct. 1986) (holding that a licensed liquor establishment could be enjoined from operating as a nuisance on the basis of the behavior of its patrons off of the licensed premises, where such behavior included public urination, loud and boisterous behavior, littering, drinking outside of the tavern, fighting, and other disorderly conduct).
11. In considering the current nature of Petitioner’s nightclub and the disturbances that have resulted from its recent operations, I find the proposed location unsuitable for the renewal of Petitioner’s beer and wine permit and restaurant minibottle license. The community surrounding the Freaky Tiki is entitled to be free of the kinds of noise disturbances, criminal activity, and other nuisances that have been associated with Petitioner’s recent operations at the location. “The right of a person to use his own property does not entitle him to violate the peace and comfort of others in the vicinity.” 3 S.C. Juris. Breach of Peace § 7 (1991). In the case at hand, the manner in which the Freaky Tiki has been operated recently, and, in particular, its failure to control its patrons as they exit the establishment at closing time, have violated the peace and comfort of the surrounding community, and the record is devoid of any evidence to suggest that the continued operation of Petitioner’s nightclub in a similar fashion will not create similar problems in the neighboring community.
It should be noted that this location is rendered unsuitable for the renewal of Petitioner’s permit and license because of the manner in which Petitioner has operated its nightclub, particularly at closing time, and not because of the mere physical location of the premises. However, as the evidence in the record does not provide this Court with any great comfort that genuine changes in the manner in which Petitioner operates its nightclub are forthcoming, this Court cannot, in good conscience, approve the renewal of Petitioner’s beer and wine permit and minibottle license, given the troubled recent history of the nightclub’s operations.
12. As the trier of fact, the issuance or denial of a permit or license rests within the sound discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit and license in the instant case is compelled because the renewal of the requested permit and license would be detrimental to the community surrounding Petitioner’s establishment.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that Petitioner’s applications for the renewal of its on-premises beer and wine permit and restaurant minibottle license for the premises located at 708A North Ocean Boulevard in Myrtle Beach, South Carolina, are DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
October 24, 2005
Columbia, South Carolina |
