ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (ALC or
Court) pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2005) and § 1-23-600(B) (Supp.
2005). The South Carolina Department of Revenue (Department) seeks to revoke the
beer and wine permit and restaurant liquor by the drink license (restaurant
license) of Club Rio, Inc., d/b/a Club Rio (Respondent). A hearing was held
before me on September 5, 2006, at the offices of the Administrative Law Court
in Columbia, South Carolina.
STIPULATIONS
OF FACT
At the hearing into
this matter and pursuant to ALC Rule 25(C), the parties entered the following
written stipulations of fact into the Record:
1. Club Rio,
Inc. d/b/a Club Rio (“Club Rio”) is the holder of an on-premise beer and wine
permit, and alcoholic beverage liquor by the drink license, for the location at
1234 Main Street, in the town of Columbia, South Carolina.
2. That the
following Incident Reports were necessitated as a result, directly or
indirectly, of the operation of Club Rio between February, 2006 and July 28,
2006:
a. 2/5/06-
Assault & Battery on EMS/Firefighter; Resisting Officer
b. 2/17/06- Two Misplaced Credit
Cards (Information/Non-reportable offense)
c. 2/28/06-
Burglary/Breaking & Entering (into Club Rio)
d. 3/24/06-
Fights and disturbances inside club (Information)
e. 3/31/06-
Fighting/Mutual Combatants (Information)
f. 4/7/06-
Pointing and Presenting Firearm/Simple Assault
g. 4/15/06-
Disorderly Conduct/Resisting Arrest
h. 5/19/06-
Lynching
i. 6/16/06- Assaulting Police
while Resisting Arrest/Fighting/Disorderly Conduct
j. 6/16/06-
Resisting Arrest/Disobedience to Police Officer
k. 6/16/06- Assault on Police
Officer (x2)/Disorderly Conduct (x3)/Interfering with Police (x3); Resisting
Arrest, Disobedience to a Police Officer
l. 7/9/06-
Lynching
m. 7/27/06-
Simple Assault
n. 7/28/06- Disorderly Conduct/Resisting
Arrest/Interfering with Police Officer
o. 7/28/06-
Discharging Firearm (Inside Club Rio)/Lynching
p. 7/28/06- Assault & Battery
with Intent to Kill/Discharge of Firearm into Dwelling
3. That amongst
the most serious of the foregoing incidents, two of the foregoing resulted in
three (3) police officers being injured, which required medical care, while
responding to calls for service at the location.
4. That
further, amongst the most serious of the foregoing incidents, two of the
foregoing resulted in patrons being severely beaten by multiple persons.
5. That
further, amongst the most serious of the foregoing incidents, one of the
foregoing resulted in a firearm being discharged within Club Rio.
6. That as a
further result of the operation of Club Rio, parking has presented a problem
for the City of Columbia Police Department in that on numerous occasions
patrons of Club Rio have parked in the restricted parking lot for City Hall.
7. That Club Rio has no parking lot or other reserved parking spaces for the use of its patrons.
8. That patrons
of Club Rio, upon seeking admission to the location, are frequently required to
wait in one or more lines that have formed in front o the location and
extending down the public sidewalk.
9. That these
lines of people waiting to get inside have in the past, either been the source
of various disturbances or have been the victim(s) of various unruly behavior.
10. That patrons
of Club Rio, coming to or going from the premises, frequently linger in the
immediate vicinity and often “cruise” the immediate vicinity where Club Rio is
located, in their cars or on foot - stopping so to speak with other patrons in
the street, on the sidewalk, or in their cars thereby creating a traffic
congestion and other associated problems – a result of which has been a number
of occasions where the City of Columbia Police Department has had to set up
alternative traffic patterns to accommodate the patrons and others in the
immediate vicinity.
11. That
patrons of Club Rio, going to or coming from the premises, frequently linger in
the immediate vicinity and often “cruise” the immediate vicinity where Club Rio
is located, in their cars or on foot – a result of which is increased trash in
the area upon their ultimate departure of the area.
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 proof upon the Petitioner
and the Respondent, I make the following Findings of Fact by a preponderance of
the evidence:
As set forth above, Club
Rio has seen a sharp increase in the number of incidents requiring police
assistance within the past six (6) months. The Columbia Police Department
routinely receives a call every Thursday night or Friday morning reporting a
fight in progress at the location. There have been two instances in which an
“all call” was issued, which required police officers to travel at high speeds to Club Rio
and abandon their normal patrol area. The speed at which the officers must
travel to the scene, coupled with the removal of needed law enforcement presence
from normal patrol areas, further compounds the threat to the public safety or
welfare created by the operation of Club Rio.
Furthermore, though
this Club closes at 3:00 a.m. on Thursday and Friday and 2:00 a.m. on Saturday,
traffic in the area has become a problem when the club closes at night. Many
patrons loiter in the streets for up to forty-five (45) minutes after closing.
Some drive their cars continuously around the block, stopping in the road to
talk with pedestrians. Often fights and other criminal activity occur. On
numerous occasions, this has forced the police to block off portions of the
road and direct traffic out of the area. This also compounds the threat to the
public safety or welfare created by the operation of Club Rio.
All of the witnesses agreed
that the club’s recent transition to “hip-hop” and rap music attracted patrons
who engaged in the behavior that created problems for the law enforcement and
the community in general. Though Respondent may have recently somewhat modified
their musical format, the changes clearly have not lessened the problem of
unlawful conduct in the area. Furthermore, though the owners have made an
attempt to increase the security presence at the club in the past year, their
measures have not reduced the danger to the public created by their operation
of this business.
Nevertheless,
Club Rio has been in operation since 2003. During that time the Club has had a
variety of music formats that it presented to its patrons. The recent move to
“hip-hop” and rap music was the result of a loss of business after another club
in the Vista area opened with a similar format. Before Club Rio began operating
with the “hip-hop” and rap music format, it had never had any violations
concerning its permit or license and was not a nuisance to the community.
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. 2005) grants jurisdiction to the Court to hear
contested cases under the Administrative Procedures Act. Specifically, S.C.
Code Ann. § 61-2-260 (Supp. 2005) grants the ALC the authority to hear
contested case hearings in matters governing alcoholic beverages, beer and
wine.
2. The
Department is charged with the responsibility of administering the laws and
regulations governing the sale of alcoholic beverages in South Carolina. See S.C. Code Ann. § 61-2-80 (Supp. 2005). Pursuant to that authority, the
Department may suspend or revoke a beer and wine permit or an alcoholic license
that violates the provisions of S.C. Code Ann. §§ 61-4-590 or 61-6-1830 (Supp. 2005).
3. The
Department argues that the permit and license of Club Rio should be revoked
because Michael Gibson, a principal of Club Rio, was convicted of possession of
cocaine on July 26, 2005. S.C. Code Ann. § 61-2-100 (D) generally provides that
“[t]he department may not issue a license or permit under this title to any
person unless the person and all principals are of good moral character.”
Principals include:
· an officer of the business or entity which owns the business;
· a partner other than a limited partner who cannot exercise any
management control;
· a person who owns twenty-five percent or more of the combined
voting power of the business or entity;
· a person who owns twenty-five percent or more of the value of the
business entity; or
· an employee who has day-to-day operational management
responsibilities for the business or entity.
See S.C. Code Ann. §
61-2-100 (H)(2)(a), (b), (f), (g) and (h) (Supp. 2005). More specifically,
S.C. Code Ann. § 61-4-520 (Supp. 2005) provides that a beer or wine permit may
not be issued to “a partner, or co-shareholder of the applicant” unless the
person is of “good moral character.” The Department may revoke the permit of a
person failing to comply with the requirements of that Section. See S.C.
Code Ann. § 61-4-270 (Supp. 2005). Likewise, S.C. Code Ann. § 61-6-1820 (2) also
requires that a corporation holding a restaurant liquor by the drink license
have “a reputation for peace and good order in its community, and [that] its
principals [be] of good moral character.” Failures to meet those requirements
are also grounds for revocation of the license. S.C. Code Ann. § 61-6-1830.
In support of its
contention the Department introduced a copy of a “rap sheet” that had been
obtained by the Columbia Police Department.
The “rap sheet” reflects that Michael Gibson was convicted of possession of
cocaine with a sentence start date of July 26, 2005. The mere possession of
cocaine is a crime of moral turpitude. State v. Major, 301 S.C. 181,
391 S.E.2d 235 (1990). “A crime involving moral turpitude is an act of
baseness, vileness, or depravity in the private and social duties which man
owes to his fellow man or to society in general, contrary to the customary and
accepted rule of right and duty between man and man.” State v. Perry,
294 S.C. 311, 312, 364 S.E.2d 201, 202 (1988). Obviously, a conviction of a
crime of moral turpitude reflects a lack of “moral character.” In fact, a
conviction of possession of cocaine has been the basis for our Supreme Court’s
determination that an attorney no longer possessed the moral character to be a
member of the bar. See Matter of Gibson, 302 S.C. 12, 393 S.E.2d
184 (1990).
The Respondent, on the
other hand, contends that Mr. Gibson was not convicted of possession of cocaine,
but illegal possession of steroids. In support of its contention, Respondent
submitted the Sentence sheet which reflected that Michael Gibson plead guilty
to violation of S.C. Code Ann. § 44-53-370 (d)(2). Evidence of a final
judgment is admissible “to prove any fact essential to sustain the judgment.” S.C.
R. Evid. 803(22). Proof of a final judgment is usually established by a
certified copy of a judgment.
However, neither the Department nor the Respondent submitted certified copies
of the respective documents.
Furthermore, Respondent contests the accuracy of the statements within the “rap
sheet.” Since neither document is certified in accordance with Rule 902,
neither document is entitled to a presumption that the contents of the record
establish the statements therein. S.C. R. Evid. 1005. In addition, no
testimony was presented comparing the documents to the original, if any exists.
When an issue is raised about whether document in evidence correctly reflects
the contents, it is left up to the trier of fact to resolve the issue and
determine the facts. S.C. R. Evid. 1008. Thus, it is the duty of this Court to
weigh the evidence presented.
Here, a copy of the
sentencing sheet pronounced by the court carries much more weight than a “rap
sheet.” A copy of the judgment reflects that Michael Gibson plead guilty to
violating S.C. Code Ann. § 44-53-370 (d)(2). Section 44-53-370 (d)(2) provides
that a person who knowingly or intentionally possesses a controlled substance classified
in Schedules I through V without a prescription (or as otherwise authorized by Article
3 of Title 53, Chapter 44) is guilty of a misdemeanor. Thus, the judgment
submitted into evidence reflects a plea to possessing a vast range of possible
drugs – some which may be crimes of moral turpitude, others which may not be
crimes of moral turpitude. Moreover, though Schedule II includes cocaine in its list, if Michael Gibson did plead to possession of
cocaine the provision following Section 370 (d)(2), S.C. Code Ann. § 44-53-370
(d)(3), would seem to be the more logical violation of the drug laws.
Therefore, I do not find that the evidence sufficiently established that
Michael Gibson was convicted of possession of cocaine and, accordingly, the
evidence did not establish that he lacks the moral character to be a principal
of Club Rio.
4. The
Department also argues that the permit and license of Club Rio should be
revoked because the Club has become a “public nuisance” and no longer has a “reputation
for peace and good order.” S.C. Code Ann. § 61-4-580 (5) (Supp. 2005) provides
that no holder of a beer or wine permit may “knowingly. . . permit any act, the
commission of which tends to create a public nuisance. . . .” In instances in
which a permit holder becomes a “public nuisance,” the Department may revoke or
suspend the permit pursuant to the South Carolina Revenue Procedures Act. S.C.
Code Ann. § 61-4-590 (Supp. 2005).
A nuisance is a
substantial and unreasonable interference with the use and enjoyment of ones
property. O'Cain v. O'Cain, 322 S.C. 551, 473 S.E.2d 460 (Ct. App.
1996). “It is anything which hurts, inconveniences, or damages; anything which
essentially interferes with the enjoyment of life or property.” 473 S.E.2d at 466.
To constitute a public nuisance, a nuisance must be in a public place or where
the public frequently congregates, or where members of the public are likely to
come within the range of its influence. Neal v. Darby, 282 S.C. 277, 318
S.E.2d 18 (Ct. App. 1984). “The difference between a public nuisance and a
private nuisance does not consist in any difference in the nature or character
of the thing or activity itself.” Home Sales, Inc. v. City of North Myrtle Beach, 299 S.C. 70, 382 S.E.2d 463 (Ct. App. 1989). In other words, “[a]
nuisance is public because of the danger to the public which might have been
created.” Home Sales, Inc. v. City of North Myrtle Beach, 299 S.C. 70,
382 S.E.2d 463 (Ct. App. 1989). However, it is not based on “the number of
persons annoyed, but the possibility of annoyance to the public by invasion of
its rights, the fact that it is in a public place and annoying to all who come
within its sphere.” Belton v. Wateree Power Co., 123 S.C. 291, 115 S.E.
587 (1922). Furthermore, whether an act(s) constitutes a nuisance depends upon
the facts of the case and “no definite rule can be laid down for the
determination of the question.” Winget v. Winn-Dixie Stores, Inc., 242 S.C.
152, 130 S.E.2d 363 (1963).
S.C. Code Ann. § 61-6-1820
(Supp. 2005) requires that an applicant for a restaurant license must have a “reputation
for peace and good order in its community.” Furthermore, S.C. Code Ann. § 61-6-1830
(1) (Supp. 2005) provides that the Department may suspend or revoke a
restaurant license upon finding that the restaurant no longer meets the
requirements of Section 61-6-1820.
5. As set forth
above, the Department, and therefore the ALC, has the authority to revoke or
suspend Respondent’s permit and/or license. In this case, the evidence clearly
shows that law enforcement officers have had to respond to numerous complaints
of crimes and violent incidents at the location, which have increased in both
frequency and severity. Because of these incidents, law enforcement is unable
to maintain public order or provide for the safety of members of the public in
the area and patrons of the location. Thus, Respondent no longer has a
reputation for peace and good order in the community. Furthermore, in light of
the totality of the malfeasance which has occurred at Club Rio, it constitutes a
public nuisance.
Nevertheless, Club Rio
operated for several years without any violations of its permit or license or
any problems with law enforcement. All of the witnesses agreed that the club’s
recent transition to “hip-hop” and rap music attracted patrons who created the
problems that warranted this proceeding and the prior suspension of the license
and permit pending this decision. Club Rio has stipulated that it will return
to the music format of jazz and/or top forty so as to avoid the type of
individuals that were attracted to the location when it featured “hip-hop”/rap
music. It has also redecorated the interior of the Club, including the
addition of more tables and chairs which go along with an expanded menu.
Furthermore, at the hearing this Court expressed concern about the Club
continuing to operate under the same name, if it indeed intended to seek a
different clientele. Following the hearing, Respondent’s attorney notified
this Court that Club Rio had changed the operating name of the Club.
In
light of the mitigating evidence, I find that the Respondent’s permit and
license should be suspended for thirty (30) days.
I further find that the Club shall only be allowed to operate as set forth
below. To insure that the public is protected, this Order shall not become a
Final Decision in this case until six months have passed from the date of its
issuance.
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that Respondent’s permit and license is suspended for thirty
(30) days beginning August 15, 2006.
IT
IS FURTHER ORDERED that Club Rio shall only be allowed to operate with a
jazz and/or top forty music format. The name of the Club shall also be substantially
changed before the Club is permitted to sell beer, wine or alcohol.
IT
IS FURTHER ORDERED that this Order shall not become a Final Decision in
this case until six months have passed from the date of its issuance. During
the interim six months, if any facts occur warranting the modification of this
Order, the parties may petition this Court to modify the terms of this Order.
AND IT IS SO
ORDERED.
___________________________________
Ralph
King Anderson, III
Administrative
Law Judge
September 8, 2006
Columbia, South Carolina
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