SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004) for a contested case hearing. Caldwell Entertainment, d/b/a Club Liquids, (Petitioner), seeks an on-premise beer and wine permit and a minibottle license for a gentlemen’s club to be located at 5511 Forest Drive, Columbia, South Carolina.

Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit and license based on the protest filed by Mr. George Parker, Jr. pursuant to S.C. Code Ann. § 61-4-525 (Supp. 2004). Mr. Parker was granted leave to intervene prior to the hearing. The hearing in this matter was held on February 9, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina.

Both parties and the Protestant appeared at the hearing. Evidence was introduced and testimony was given. The Respondent’s file on this application was admitted into evidence without objection. After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s on-premises beer and wine permit and Petitioner’s minibottle license should be granted with restrictions after certain requirements are met.

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 evidence:

1. The ALC has personal and subject matter jurisdiction.

2. Notice of the time, date, place and subject matter of the hearing was timely given to all parties and to the Protestant.

3. The content of the Statement of the Case, to the extent that it constitutes findings of fact, is incorporated herein verbatim.

4. The Petitioner, Caldwell Entertainment, d/b/a Club Liquids (Petitioner), seeks an on-premise beer and wine permit and minibottle license for a gentlemen’s club to be located at 551 Forest Drive, Columbia, South Carolina (“location”). The location is primarily commercial.

5. The location is not within three hundred feet of a church, school, or playground.

6. Notice of Petitioner’s application was published in a newspaper of local circulation once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

7. Dechrisha A. Caldwell, the Petitioner’s sole owner, is over the age of twenty-one. She is a legal resident of the State of South Carolina, residing in Columbia, South Carolina. She plans to operate a gentlemen’s club at the location. Mrs. Caldwell plans to be open for business seven days a week from 7:00 p.m. until closing (determined nightly).

8. The location previously held a beer and wine permit and minibottle license for many years. The location was last permitted and licensed in August of 2005. The owner voluntarily turned in his license and permit.

9. Mrs. Caldwell stipulates that, as conditions of a permit and license if so granted, she will construct a cinder block wall ten feet in height along the rear property line of the premises, she will install a Digital Sound meter to monitor noise, and she will have four armed security guards outside the premises and five unarmed guards inside the premises. Mrs. Caldwell also stipulates she will consent to a mandatory closing time if necessary. Finally, Mrs. Caldwell stipulates that her husband will not have any involvement in the business.

10. The location is scheduled to be demolished in 2007 to make way for a hospital.

11. Mrs. Caldwell plans to open the gentlemen’s club even if the location is not granted a permit and license. While operating without a permit or license, a location can allow all-nude dancing and can allow patrons to provide their own alcoholic beverages.

12. The Richland County Sheriff’s Department is opposed to the location being licensed and permitted. However, the Department did not file a timely protest to Petitioner’s application. Officer Soto and Captain Porter appeared as witnesses called by the Protestant/Intervenor at the hearing.

13. David Soto is a police officer with the Richland County Sheriff’s Department. Officer Soto resides at 1505 Dellwood Drive, approximately six hundred yards from the location. He is concerned about loud music, gang activity, and illegal drug activity at the location. He is also concerned about his property value decreasing.

Under the previous management, loud music, gang activity, and drug activity at the location caused many calls to be placed with the Richland County Sheriff’s Department. Officer Soto fears this kind of activity will resume when the location reopens.

14. Cole Porter is a Captain with the Richland County Sheriff’s Department. Captain Porter is also concerned that illegal activity will occur at the location, as it did under the previous manager, causing the Richland County Sheriff’s Department to have to respond to the problems. Captain Porter is concerned about Mrs. Caldwell’s husband’s involvement with the prior management of the location and his possible involvement in managing the location with Mrs. Caldwell. Mr. Caldwell has a criminal record that would prevent him from obtaining a license or permit, and would prevent him from working at a location that is licensed or permitted. Mr. Caldwell is not a suitable person to be employed by an establisment holding a beer and wine permit or a minibottle license under the Laws of the State of South Carolina.

Captain Porter believes that granting a license and permit with restrictions is more desirable than denying the permit and license, thereby allowing the location to operate unregulated while allowing patrons to provide their own alcoholic beverages.

15. George Parker, Jr., the Protestant/Intervenor in this case, resides at 1157 Dellwood Drive, approximately five hundred yards from the location. Mr. Parker is concerned with loud noise coming from the location. While under previous management, noise emanated from the location that could be heard inside Mr. Parker’s home at 4:00 in the morning. Mr. Parker is concerned that loud noise will continue to emanate from the location while being managed by Mrs. Caldwell.

While the location was under previous management, Mr. Parker heard a gunshot at 4:30 a.m. one morning. He looked out the window to see people running from the location. The bullet from the gunshot he heard entered his home through his dining room window and exited through his living room window. However, there was no direct evidence to show the bullet came from the location. Mr. Parker is concerned with the safety and well-being of his wife and his two daughters. Mr. Parker is afraid that illegal activity will take place at the location that may put his family in danger.

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. (1986 & Supp. 2004).

2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. 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).

4.         S.C. Code Ann. § 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. S.C. Code Ann § 61-4-520 (6) (Supp. 2004).

5.         S.C. Code Ann. § 61-6-1820 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).

6.         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).

 7.         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).

8.         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. ABC 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)). 

9. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for permits and licenses to sell alcoholic beverages using broad but not unbridled discretion. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). In considering suitability of location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition of a permit is based on opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

10. S.C. Code Ann. § 61-4-580 provides that “No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly…permit lewd, immoral, or improper entertainment, conduct, or practices.” S.C. Code Ann. § 61-4-580(4) (Supp. 2004). “This includes, but is not limited to, entertainment, conduct, or practices where a person is in a state of undress so as to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering…” Id.

11. S.C. Code Ann. § 61-6-1830 provides that “The department may suspend, revoke, or refuse to renew a license issued…upon finding that…the applicant permits entertainment on the licensed premises where a person is in a state of undress so as to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering.” S.C. Code Ann. § 61-6-1830(4) (Supp. 2004).

12. The objections interposed by Officer Soto, Captain Porter, and Mr. Parker do not constitute sufficient grounds for the denial of the permit and license here sought. The location is not within three hundred feet of a church, school, or playground. The location is in an area that is primarily commercial.

In fact, Captain Porter believes that granting a license and permit with restrictions is more desirable than denying the permit and license, thereby allowing the location to operate unregulated while allowing all-nude dancing and allowing patrons to provide their own alcoholic beverages. The issuance of a beer and wine permit and minibottle license would require the dancers to cover portions of their bodies. The permit and license holder risks revocation or suspension of the beer and wine permit and minibottle license if the dancers are not properly covered. Therefore, the location is suitable for a beer and wine permit and minibottle license.

However, I am concerned about the rights of the individuals to live in their homes in a safe and quiet environment. As a condition for keeping the permit and license, Petitioner must prevent any actions or activities at the location which would or could deny his neighbors the right to live comfortably and without objectionable noise in the privacy of their homes.

Accordingly, I find that the location would not have an adverse impact on the surrounding community and is suitable for an on-premises beer and wine permit and minibottle license as long as it conforms to the restrictions set forth below.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that the application for an on-premises beer and wine permit and minibottle license by Caldwell Entertainment, d/b/a Club Liquids, at 5511 Forest Drive, Columbia, South Carolina is GRANTED upon receipt of a Grade A certificate by the Division of Food Protection of the Bureau of Environmental Health in the South Carolina Department of Health and Environmental Control, upon final inspection of the location by the South Carolina Law Enforcement Division, and upon Dechrisha A. Caldwell signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

RESTRICTIONS

1. Petitioner and its employees shall not allow excessive noise to emanate from the location (any noise that is noticeably audible within any local residence with closed doors and windows shall be considered excessive). For the purposes of this restriction, any conviction for the violation of any applicable county noise ordinance shall be considered a violation of this provision. Petitioner shall install a Digital Sound meter to monitor noise at the location and maintain the meter in proper working condition at all times the location is open for business.

2. No music, including live music, or any activities sponsored, authorized or acquiesced to by Petitioner, is permitted on the outside of the building at the location.

3. Petitioner shall construct, prior to opening for business, a cinder block wall ten feet in height along the rear property line of the premises.

4. Petitioner shall have four armed security guards outside the premises and five unarmed guards inside the premises at all times while the location is open for business.

5. Petitioner’s hours of operation at the location shall be 7:00 p.m. to 2:00 a.m. Monday through Friday, and 7:00 p.m. through 12:00 a.m. on Saturday. Petitioner shall not open for business at the location on Sunday.

6. Mr. Bryant Caldwell, Dechrisha A. Caldwell’s husband, shall not have any involvement in the business. Mr. Bryant Caldwell shall not be present on the premises when the location is open for business.

7. Pursuant to S.C. Code Ann. §§ 61-4-580 and 61-6-1830, all persons present at the location must at all times wear sufficient clothing so as not to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the on-premises beer and wine permit and minibottle license and, after notice to the Department and a hearing, may result in a fine, suspension, or revocation of the permit and license.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

February 22, 2006

Columbia, South Carolina