SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260, 61-4-520, 61-4-525, 61-6-20 (2), 61-6-120, 61-6-1820 (Supp. 2002) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 2002) for a hearing pursuant to the application of Tracy J. Bouye, d/b/a The Matrix. The applicant seeks an on-premises beer and wine permit and a sale and consumption business (restaurant) minibottle license for a restaurant and bar located at 620 West Blackstock Road, Spartanburg, South Carolina.

After timely notice to the parties and the protestant, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina, on May 22, 2003. The parties and protestant were present and represented as indicated above. The request for a contested case hearing was made by the Petitioner after the Department of Revenue (Department) denied the permit and license based on a protest from the Sheriff’s Office as to the suitability of the proposed business location due to the number of incident calls concerning the location in the past. The Department initially did not oppose the license and permit, and indicated that but for the protest, it would have granted the license and permit. The Respondent filed an Amended Prehearing Statement on May 15, 2003 opposing the license and permit based on recent violations for selling alcohol to minors, the undue burden on law enforcement, and information concerning the lack of moral character of employees of the club.

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.The applicant seeks an on-premises beer and wine permit and a sale and consumption business (restaurant) minibottle license for a restaurant and bar known as The Matrix located at 620 West Blackstock Road, Spartanburg, South Carolina. On the application, Tracy J. Bouye was listed as the owner of the business. The building is an old warehouse with one to three clubs operating at a time. There are generally 400 to 600 people there each night, and most of the crowd arrives around midnight. There is parking in a field for approximately 400 cars. Security consists of people in the parking lot, along with video surveillance, and employees checking identification of patrons, patting patrons down for weapons and patrons passing through metal detectors. The applicant stated that she had hired experienced and capable staff to look for weapons and underage drinking.

2.The proposed location is situated in Spartanburg County outside the city limits of the City of Spartanburg. It was previously licensed from 1993 to 1996 and from 1997 to the present. The 120 day temporary permit granted to the applicant expired during the pendency of this action.

3.The area surrounding the proposed location is primarily commercial, although there are some churches and residences in the area. All are outside the statutorily proscribed distances from a licensed location. There are no schools or playgrounds within close proximity to the proposed location.

4. Testimony was that the proposed location had been previously licensed by Moe

Wood, Inc. and by the applicant’s husband, individually and with partners. Marc Hubbard, a witness at this hearing, has managed the club for several different licensees, and had applied for a license and permit in his name. He learned, however, that he did not meet the residency requirements and withdrew his application.

5. Lieutenant Lance Crowe of the Spartanburg County Sheriff's Department testified

in opposition to the application because he does not believe his department can provide adequate police protection. He presented a file containing numerous police reports of violations at this particular location, stating that the location has been a drain on the Sheriff’s Department’s resources for years. He stated that they generally need 6–10 deputies to cover each call at the club.

He is concerned about the parking at the location and the number of patrons the location attracts. Crowds of 600 to 1000 people are not unusual, and there are normally 100 to 200 cars which park in areas other than the field which belongs to the Matrix.

Lieutenant Crowe does not believe that the business does an adequate job with its security measures. He stated that there have been problems with patrons loitering in the area, parking in other businesses’ parking lots and crossing the street unsafely. There have been numerous fights in and around the location in the past. Voluminous copies of incident reports from the location, which were admitted as Respondent’s Exhibit 8, reveal calls to law enforcement from 1998 to the present for numerous crimes including lynching, stabbing, assault, vandalism, possession of narcotics, and others.

6.The applicant is of good moral character, and does not have a criminal record. There was evidence introduced at the hearing that an employee of the business, Marc Hubbard, has a criminal record from out of state. The SLED report on Mr. Hubbard did not indicate a record, but that report only covered convictions in South Carolina. The applicant was not aware of his record in North Carolina until this application. The applicant’s husband, William Bouye, has a criminal record with convictions for assault and battery and as the owner of a club that permitted lewd and lascivious behavior.

7.Although the Applicant appears very sincere in her desire to run a safe and lawful

club, she does not appear to have the management team or expertise to do so. The Respondent submitted copies of five different violations of the alcoholic beverage control statutes from 1994 to 2001 at this location. The licensees named on those violations included the applicant, her husband and Moe Wood, Inc. Although the applicant testified that there had been no “incidents” at the club since she owned it, the record reflects that there was a violation on October 15, 1998 for consumption of liquor by a non-member. Tracy M. Jennings [applicant’s maiden name] was the licensee on that date. In addition, the two violations for permitting consumption of beer by a person under 21 which cited Moe Wood as the licensee in 2000 and 2001 occurred during Mrs. Bouye’s ownership. See Respondent’s Exhibit 7.

8. The applicant is at least 21 years of age, a U.S. citizen, a citizen of the State of

South Carolina, and maintained her principal residence in the state for at least thirty (30) days prior to the date of making application.

9.Notice of the application appeared in The Spartanburg Herald-Journal, a newspaper of general circulation in the area of the proposed location, for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following: 1. S.C. Code Ann. § 61-2-260 (Supp. 2002) authorizes the South Carolina Administrative Law Judge Division to hear this case pursuant to Chapter 23 of Title 1 of the 1976 Code, as amended.

2.S.C. Code Ann. §§ 61-6-110 and 61-6-1820 establish the criteria for a sale and consumption (minibottle) license. S.C. Code Ann. § 61-4-520 (Supp. 2002) establishes the criteria for the issuance of a beer and wine permit. §61-6-110 states that: “[N]o person is eligible for a license under this article. . . if he or the person who will have actual control and management of the business proposed to be operated: . . . (3) is not of good repute. . . .” Likewise, §61-4-520, referring to a permit to sell beer and wine, states: “No permit authorizing the sale of beer or wine may be issued unless: (1) the applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises are of good moral character.”

3.Although a “good repute” or “good moral character” is not statutorily defined,

rather broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular applicant. The rejection of an applicant may not be made arbitrarily or capriciously. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). In South Carolina there is no single criterion by which to determine whether or not one is possessed of good moral character. 1968-69 Ops. Attorney General, No. 2709, p. 159.

4.The trier of fact must weigh and pass upon the credibility of evidence presented. See

S.C. Cable Television Ass’n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and evaluate his testimony. Woodall v. Woodall, 322S.C.7, 471S.E.2d154,157 (1996), citing McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

5.Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).

6.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 a permit to sell beer and wine using broad, but not unbridled discretion. Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

7.The determination of suitability of a location is not necessarily a function solely of geography. 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. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). The court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8."A liquor license or permit may properly be 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). In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9.I find that the concerns of the Protestant and the objections by the Respondent are

valid. There have been numerous alcohol violations at this location, including ones when the applicant was the licensee. Mr. Hubbard’s character is a concern to the court. Even though the applicant admitted that she would fire Mr. Hubbard if necessary to obtain a license, it appears that her continued reliance on him, in light of the previous trouble at the club during his management tenure, demonstrates that he continues to be involved in major decisions.

Crowe testified that he has never seen the Bouyes at the club, and that Mr. Hubbard had identified himself as “running the club.” The fact that the applicant was not aware of Mr. Hubbard’s prior convictions from out of state demonstrates either a lack of forthrightness on his part, a lack of sufficient background check, or both.

In addition, I find the testimony of Lt. Crowe highly credible. The sheer volume of incident reports at this location, coupled with the types of incidents, gives great credence to the concerns of law enforcement regarding their ability to adequately police the area. The addition of the large number of people that this location is capable of holding, and the inadequacies of the parking lot and security checks at the location only underscore the legitimate concerns of the Sheriff’s Department.

ORDER

Based upon the Findings of Fact, Conclusions of Law, and Discussion, it is hereby:

ORDERED that the application of Tracy J. Bouye, d/b/a The Matrix for a beer and wine permit and a sale and consumption business (restaurant) minibottle license for a restaurant and bar located at 620 West Blackstock Road, Spartanburg, South Carolina, is DENIED.

AND IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

August 5, 2003

Columbia, South Carolina