South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Michael J. Mendoza, Systems Management, Inc. d/b/a Jukebox vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Michael J. Mendoza, Systems Management, Inc. d/b/a Jukebox

Respondents:
South Carolina Department of Revenue and Vendue Inn (Intervenor)
 
DOCKET NUMBER:
96-ALJ-17-0101-CC

APPEARANCES:
For the Petitioner: Frank M. Cisa, Esquire

For the Respondent/South Carolina Department of Revenue and Taxation: Arlene D. Hand, Esquire (excused from appearing at the hearing)

For the Respondent/Intervenor: Lawrence J. Needle, Esquire
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55, et seq. (Supp. 1995) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1995) for a hearing pursuant to the application of Michael J. Mendoza, Systems Management, Inc., d/b/a Jukebox ("Applicant" or "Petitioner") for renewal of an on-premise beer and wine permit (AI 23120) and an on-premise sale and consumption ("mini-bottle") license (AI 23121) for the premises located at 4 Vendue Range, Charleston, Charleston County, South Carolina ("location").

A hearing was held on April 25, 1996, at the Charleston County Courthouse, Charleston, South Carolina. The issues considered were: 1) the nature of the proposed business activity, and 2) the suitability of the proposed location.

The application was protested by The Vendue Inn through its President, Evelyn Needle; The Anchorage Inn through its Innkeeper, Elizabeth S. Tucker; and the Vendue Range Homeowners Association, through its President, Robert H. Nuttall, Sr. A Motion to Intervene made by The Vendue Inn was granted. Testifying at the hearing in opposition to the issuance of the permit and license were Evelyn Needle and Elizabeth S. Tucker. The South Carolina Department of Revenue and Taxation ("Department"), as set forth in its prehearing statement, stated it would have issued the permit and license but for the protest. The Department's Motion to be Excused from appearing at the hearing was granted.

The on-premise sale and consumption license renewal application request and the on-premise beer and wine permit renewal application request are denied.

EXHIBITS

Those certified copies of documents forwarded to the Administrative Law Judge Division file from the Department were made a part of the record.

Various other exhibits were entered into the record by Petitioner and Respondent/Intervenor. Exhibits such as petitions and affidavits, where allowed into the record, are given little evidentiary weight.



FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties and the Protestants.

3. The applicant is seeking renewal of an on-premise beer and wine permit and an on-premise sale and consumption license for a nightclub/discotheque located at 4 Vendue Range, Charleston, Charleston County, South Carolina.

4. The applicant is twenty-seven (27) years of age and has been a resident of Charleston for several years.

5. The applicant has never had a beer and wine permit or a business sale and consumption (mini-bottle) license revoked.

6. Notice of these renewal applications have not been published in a newspaper of general circulation in the Charleston area.

7. The posting of signs at the location for a period of at least fifteen days giving notice of the renewal applications has not been done.

8. The applicant is of good moral character.

9. On November 30, 1994, Frank and Zenaida Mendoza, parents of the applicant, purchased the stock of Systems Management, Inc. d/b/a Jukebox ("Systems" or "The Jukebox") from Kirby Hammond for $65,000.00. On that date, Michael Mendoza was hired as President of Systems. Mr. Mendoza has worked at The Jukebox in various capacities since 1987. He was previously a doorman, bartender and manager. Systems currently rents the properties at 4 Vendue Range for $9,974.74 per month.

10. Evelyn Needle is the President and co-owner of The Vendue Inn. The Vendue Inn is a luxury bed and breakfast located at 19 Vendue Range in Charleston, South Carolina, across the street from The Jukebox. Mrs. Needle and her husband, Morton Needle, own the buildings in which The Vendue Inn is located. Mrs. Needle is the innkeeper and manages the business. It is a "4 Diamond Inn" and its owners maintain high standards. The rooms rent up to $185.00 per night, or more.

11. The Anchorage Inn is a bed and breakfast consisting of 19 rooms located across the street from The Vendue Inn on Vendue Range. It is owned by Land's Inn, Inc., and is managed by Elizabeth S. Tucker. Also, there are located on Vendue Range an office building, a travel agency, a residential condominium and a restaurant/bar known as "The Griffon."

12. The address of 4 Vendue Range has been home to nightclubs and restaurants holding beer, wine and liquor permits/licenses for at least fifteen (15) years. The Jukebox is operated as a nightclub and discotheque. Live bands do not perform at the Jukebox. The Jukebox caters to patrons between the ages of twenty-five (25) and fifty-five (55) years of age. No one under the age of twenty-one (21) years is allowed in the club. On a typical Friday or Saturday evening, The Jukebox may have as many as 300-400 patrons.

13. The area within which The Jukebox and Vendue Inn are located is primarily commercial in nature. There are eight (8) liquor licenses issued to establishments within a one (1) block radius of The Jukebox, including one currently held by The Vendue Inn, and over twenty-five (25) liquor licenses issued to locations within a four (4) block radius of the Jukebox. Another nightclub, The Acme Bar, is located to the rear of The Jukebox. The Acme Bar is approximately the same size in square footage as The Jukebox. An alleyway leads from The Acme Bar to Vendue Range at a point in close proximity to The Vendue Inn. There is a city parking garage located directly behind The Jukebox fronting Concord Street. The city's Waterfront Park is located across Concord Street from The Jukebox. The park closes at 12:00 a.m. There is no residential property in close proximity to The Jukebox with the exception of some 13 residential condominiums on the top three floors of a building located at the corner of East Bay Street and Vendue Range. None of the condominium owners appeared at the hearing, although their homeowners' association protested the application.

14. The Jukebox location comprises some 6,200 to 6,500 square feet.

15. The entertainment at The Jukebox consists of a live disc jockey with skits, shows, and performances by dancers.

16. The entrance used by customers/patrons of The Jukebox is on Vendue Range. There was formerly an entrance on Concord Street; however, it is no longer used as the main entrance.

17. The Jukebox is presently open Monday, Tuesday, Wednesday, Thursday and Saturday between the hours of 5:00 p.m. and 2:00 a.m., and on Friday between the hours of 5:00 p.m. and 2:30 to 3:30 a.m. It remains open even later if business and customer traffic remain strong.

18. With the possible exception of the The Griffon, there are no other bars/nightclubs on Vendue Range which stay open until 2:00 a.m. or later. However, up until the last few months, The Griffon location was a restaurant known as the Moultrie Tavern which closed earlier than 12:00 midnight. The Griffon is a much smaller restaurant/bar than The Jukebox. The Vendue Inn operates a rooftop bar several months during each year; however, the bar is closed no later than 11:00 p.m.

19. Some bars close to the Vendue Inn on East Bay street have closed, including the East Bay Trading Company and Fanagan's.

20. Each applicant for a business license in the city of Charleston is required to fill out an application for a certificate of occupancy listing information such as the business use/type, square footage to be used by the business, hours of operation, number of employees and available parking spaces. Each owner is expected to abide by all particulars attested to on the business license application, if and as approved by the city of Charleston.

21. The Jukebox is currently operating under a business license which was originally issued on February 28, 1994 to the former owner of Systems, Jay Johnson. On the certificate of occupancy, the business use/type listed is restaurant, the amount of square footage is listed as 4,000, the number of employees is listed as 10, and the number of available parking spaces is shown as 18. The hours of operation are listed as 5:00 to 12:00 which is inferably 5:00 p.m. to 12:00 a.m. The designated licensing person for The Jukebox was subsequently changed from Jay Johnson to Kirby Hammond, who owned the stock of Systems upon the sale to petitioner's parents.

22. Petitioner, as president of Systems, applied for a business license (certificate of occupancy) on March 21, 1995. He listed the business use as "restaurant," with hours of operation until 2:00 a.m., Monday through Saturday, with opening time at 5:00 p.m. The number of employees was listed as 28. The amount of square footage listed was 14,500 with 100 parking spaces. The application was received by the city of Charleston on April 10, 1995, with the notation that it was being filed due to change in ownership. This application was not approved by the city of Charleston.

23. The real properties located on each side of Vendue Range are zoned as "limited business accommodations." Limited business zoning districts within the city of Charleston prohibit certain uses that are not considered compatible with a limited commercial area which is adjacent to or close to residential areas. Restrictions are placed both on the use of the commercial establishments as well as the hours of operations. Factors which are considered in determining whether an area is a limited business zone include its proximity to residential properties as well as a determination whether the land use of the proposed business would be compatible with the other types of businesses in the area.

24. Vendue Range is within a limited business zone because it is a transitional area between the more intensive commercial area of Market Street and the areas to the south which contain residential properties.

25. According to current zoning regulations of the city of Charleston, the current restrictions for hours of operation provide that, within a limited business zone, businesses are to close no later than 11:00 p.m.

26. Both The Vendue Inn and The Anchorage Inn contest the renewal of the permit and license because of excessive noise from individuals and vehicular traffic (automobiles, trucks and motorcycles), unruly behavior, offensive language, public inebriation, vandalism, assaults, and associated arrests which occur outside of The Jukebox and along Vendue Range. Many of these incidents occur on weekends, late at night, and in the early morning hours. Beer cans and drink glasses, together with trash, are thrown against and onto The Vendue Inn and The Anchorage Inn properties by late night revelers. Loud and profane language from the customers at The Jukebox prevent guests of the inns from sleeping and enjoying their accommodations in a peaceful manner. Windows, lamp posts and planters have been broken and the constant noise is unbearable. The individuals who are responsible for these acts are heading in the direction of or coming from the direction of the Jukebox. On Thursday evenings, a truck from a local radio station is parked in front of the location from which loud music emanates. Many of these problems occur after hired off-duty police officers leave and go home. Numerous complaints have been made to city officials and law enforcement over the years, especially within the last few years. These problems, however, have not been remedied.



27. As a result of many of the above concerns being related by Mrs. Needle to petitioner, in February 1995, Mr. Mendoza hired two (2) off-duty city of Charleston police officers (Officer Smith and Sergeant Schlein) to patrol in uniform the street areas in front of and alongside The Jukebox and The Vendue Inn on Friday and Saturday nights. Both officers are to work until The Jukebox closes.

28. In addition to the off-duty police officers, The Vendue Inn, The Anchorage Inn, and The Jukebox hire a security guard who stations himself most of the time in the areas in front of The Vendue Inn and The Anchorage Inn.

29. Officer Smith has been employed as a city of Charleston police officer for seven and one half years. He has also worked part-time at The Jukebox on Friday or Saturday evenings for the last two years. His duties include ensuring patrons do not leave The Jukebox with alcoholic beverages in their possession; ensuring its patrons keep the noise level down when they leave; and, patrolling the area outside The Jukebox. He has observed individuals, some of whom are patrons of the Jukebox, talking loudly and possessing open containers in the early morning hours the nights he works for petitioner.

30. Sergeant Schlein, who has been employed as a city of Charleston police officer for over twenty (20) years, also works part-time at The Jukebox either on Friday or Saturday nights. His job requires that he attempt to maintain order and preserve the peace. He patrols up and down Vendue Range; checks the alley that leads to The Acme Bar; checks with the clerk and security guard at The Vendue Inn; and generally does what he can to keep the noise level at a minimum.

31. Despite the presence of the off-duty police officers and the security guard, the officers admit that there are disturbances in and around the immediate area outside The Jukebox, which include people talking loudly, possessing open containers, and engaging in fist fights.

32. Sgt. Schlein has made four to six arrests while working at The Jukebox, and some of those arrested have been patrons of that establishment.

33. Employees at The Vendue Inn complain to the off-duty police officers about the loud noise and other disturbances. The majority of complaints from guests at The Vendue Inn are a result of loud noise and other disturbances which occur late at night and in the early morning hours.

34. Neither off-duty officer monitors every patron who walks in and out of The Jukebox. However, they are aware that at least some of the excessive noise, disturbances, and arrests are directly attributable to individuals frequenting The Jukebox. On occasion, after the officers have left their duty for the evening, individuals are still inside the Jukebox, some of whom may be patrons.

35. Patrons from Market Street come down Vendue Range to go to The Jukebox and vice versa. There are large numbers of patrons going into and coming out of The Jukebox, especially on Friday and Saturday evenings.

36. If there were no problems with noise and disturbances in the area, the off-duty officers would not have been employed by The Jukebox.

37. The Anchorage Inn has suffered financially, including the loss of revenue from seven rooms at $200 per night, after an incident in which an alarm on a car owned by a patron of The Jukebox was activated and sounded continuously for a lengthy period during the early morning hours. 38. Neither The Vendue Inn nor The Anchorage Inn have experienced similar problems with either The Griffon or The Acme Bar.

39. In some instances, as a result of loud noise and disturbances, guests have checked out of The Vendue Inn early or refused to pay for their rooms. Room rates have often been reduced as result of complaints. There has been a loss of return business from previous guests of The Vendue Inn because of these problems.

40. The night auditor at The Vendue Inn, who works the 12:00 a.m. to 8:00 a.m. shift on the weekends, has complained frequently to the city of Charleston police regarding the disturbances created by individuals leaving The Jukebox. He has seen individuals coming out of The Jukebox holding drink cups/glasses and bottles which they have often thrown in the street. He has personally witnessed public drunkenness, fighting, and vandalism occurring outside The Vendue Inn. He has heard and seen motorcycles which had been parked in front of The Jukebox race up and down Vendue Range. These problems often occur in the early morning hours.

41. The night auditor has also received complaints from guests at The Vendue Inn. Many of the complaints are made by guests who are staying in the east wing of the hotel, that part of the inn nearest to The Jukebox.

42. Patrons from The Jukebox linger at the Waterfront Park, at the parking lot across the street from its entrance, and by The Anchorage Inn and The Vendue Inn. Oftentimes, they linger after the security officer and police officers have gone home.

43. According to police records, there were over 300 reported disturbances on Vendue Range which were investigated by police officers during 1995. Of these incidents, approximately 97 occurred at The Jukebox address of 4 Vendue Range. The vice unit of the city of Charleston police department considers this to be a significant number of listings at one address.

44. Of these 97 incidents, approximately 32 were incidents of arrests, crimes against a person or property, or alcohol-related offenses that occurred at The Jukebox address.

45. The arrest records in evidence do not reflect every arrest which was made on Vendue Range, only those which occurred in front of The Jukebox. Events or other incidents on Vendue Range regarding patrons who may have been at The Jukebox are not all reflected in the number of incidents involving either arrests or crimes against persons or property.

46. There were 12 arrests at The Jukebox address during 1995 and the first several months of 1996. These included arrests for drunken behavior, disorderliness, assaults and fights, thefts, and vandalism. The arrests occurred at or in front of The Jukebox.

47. There were three violations at The Jukebox reported by the vice unit of the city of Charleston police department in 1995.

48. The majority of incidents at 4 Vendue Range involving complaints against persons or property or alcohol-related violations occurred between the hours of 11:00 p.m. and 3:30 a.m. in the morning.

49. The Vendue Inn and its owners protested the issuance of the permit and license applied for by Systems in 1985 and its renewal in 1996.

50. The city of Charleston has a noise ordinance. The Jukebox has never been cited for a violation of this ordinance.

51. The Jukebox currently employs eight (8) doormen whose duties are to maintain order in and around the club. Their duties and responsibilities include checking identification, ensuring no one enters or leaves the club with alcoholic beverages, and controlling the behavior of patrons both inside and outside the nightclub. On Friday and Saturday nights, six (6) doormen are on duty, including two (2) who work the area directly outside the front entrance of the establishment.



52. The entrance to the Jukebox is across the street from a parking lot. It consists of a set of steps leading up to double doors, which then leads into a vestibule area. Once inside the vestibule area, another door must be entered to gain access into the club.

53. As a result of the 1985 protest, The Vendue Inn, by its two co-owners, Evelyn Needle and Morton Needle, and William Rusher, then President of Systems, entered into an agreement which contained stipulations governing the operation of the nightclub. They provided that the main entrance would be located on Concord Street. These stipulations were to be made a part of any permit and license issued by the Alcohol and Beverage Control (ABC) Commission and were to be enforced by it. The agreement included a stipulation that entry and exit of the establishment would be on Concord Street. Vendue Range was never to be the entrance or exit for the facility except during lunch hours.

54. The parties also agreed that the location would be a restaurant, not a discotheque, and would be operated in such a manner so as to preserve this historic section of Charleston. Finally, the parties agreed that the capacity of the establishment would exceed no more than 300 persons.

55. The agreement and stipulations were entered into because of a history of ongoing problems from the location even prior to 1985. Furthermore, because the facility was originally a restaurant, the stipulation regarding its use was inserted to ensure it would not become a full-scale bar. It was envisioned that the establishment would be used as an upscale supper club.

56. It was intended that entry and exit by way of Concord Street would help alleviate any noise associated with patrons entering and exiting the location .

57. The stipulations have not been adhered to, and problems with noise and other disturbances have continued. Further, the stockholders and owners of Systems have gradually switched the main entrance into the location from Concord Street to Vendue Range. The number of patrons per night exceeds that which was agreed and stipulated to. The Jukebox is not operated primarily as a restaurant, but as a discotheque.

58. The above listed stipulations were an integral part of the permit and license which were issued by the ABC Commission to Systems in 1985. They have never been removed from the permit and license. The original permit and license have been renewed every two years since their issuance and remain in effect. The individuals serving as the licensing agent for Systems have changed as the stock of Systems has been sold from individual to individual; however, no action has ever been taken to request removal of these restrictions.

59. The Jukebox is authorized to continue to operate the currently licensed location (permit BW 614844 and SB 614842), pending this decision, pursuant to a letter issued by the Department on February 23, 1996.

60. No evidence was made a part of the record establishing that The Jukebox has been issued a Class A restaurant license.















CONCLUSIONS OF LAW


Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. S.C. Code Ann. § 61-9-320 (Supp. 1995) sets forth the requirements for the issuance of a beer and wine permit. It provides as follows:

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.

(2) The retail applicant is a legal resident of the United States and has been a legal resident of this Sate for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.

(3) The wholesale applicant is a legal resident of the United States and has been a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

(4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

(5) The applicant is twenty-one years of age or older.

(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indications of unsuitable location the proximity to residences, schools, playgrounds and churches.

(7) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business.

(8) Notice has been given by displaying the required sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of license sought;

(b) tell an interested person where to protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the department.

No evidence was placed in the record establishing that provisions #7 and # 8 have been complied with.

3. S.C. Code Ann. § 61-5-50 (Supp. 1995) sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license. It provides as follows:

The Department may grant a license upon finding:

(1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, as described in § 61-5-10.

(2)The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace and good order in its community, and its principals are of good moral character.

(3) As to business establishments or locations established after November 7, 1962, § 61-3-440 has been complied with.

(4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. Applicants for a beer and wine permit and alcoholic license may use the same advertisement for both if it is approved by the department.

(5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of license sought;

(b) tell an interested person where to protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the department.

(6) The applicant is twenty-one years of age or older.

(7) The applicant is a legal resident of the United States and has been a resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.

4. S.C. Code Ann. § 61-5-10 (Supp. 1995) which defines a bona fide business engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, reads in part as follows:

As used in this article:

(1) "Bona fide engaged primarily and substantially in the preparation and serving of meals" shall refer only to such a business which has been issued a Class A restaurant license prior to issuance of license under this article and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

(2) "Furnishing lodging" shall refer only to those businesses which rent accommodations for lodging to the public on a regular basis consisting of not less than twenty rooms.

No evidence was placed in the record establishing that Class A restaurant license has been issued to The Jukebox.

5. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of § 61-5-50 are met. In addition to the requirements contained in S.C. Code Ann. § 61-9-320, § 61-5-50 requires that the mini-bottle licensee be either a bona fide non-profit organization or conduct bona fide business engaged primarily and substantially in food preparation and service or the furnishing of lodging.



6. A permit may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1995) if the applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a sufficient number of licenses have already been issued in the state, municipality or community.

7. S.C. Code Ann. § 61-3-440 (Supp. 1995) prohibits the issuance of a liquor license for on-premise consumption to an applicant if the place of business (location) is within three hundred feet (300') of any church, school or playground within a municipality or is within five-hundred feet (500') of a church, school or playground situated outside of a municipality. No churches, schools or playgrounds are located within the prescribed proximity to render the proposed location unsuitable pursuant to this statute.

8. S.C. Code Ann. § 61-1-95 (Supp. 1995) provides in part as follows:

A person promptly shall surrender a license or permit issued under the provision of this title upon request of the department. All licenses and permits are the property of the department and are not transferable. All licenses and permits must be surrendered immediately to the department upon the termination of a business, or upon a change of ownership, possession, or control of a corporation or business entity, or upon a change in the character of the property, facilities, or nature of the business activity for which a license or permit has been obtained. The transfer of twenty-five percent or more of corporate stock is considered a change in ownership.

Upon transfers of stock ownership in Systems in excess of 25%, the Department never sought surrender of the existing permit and license. Upon filing of an "application for change of persons designated to hold a license or permit," the Department would approve the applicant as the responsible person and designated agent to hold the existing permit and license on behalf of the corporate owner, Systems Management , Inc.

9. S.C. Code Ann. § 61-3-490 (Supp. 1995) provides as follows:

(A) Every person intending to apply for a license under this chapter, Chapter 7, and Article 3 of Chapter 13 shall advertise at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper if published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. The notice must be in large type, cover a space one column wide and not less than two inches deep, and state the type of license applied for and the exact location at which the proposed business is to be operated. Applicants for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.

(B) Notice also must be given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(1) state the type of license sought;

(2) tell an interested person where to protest the application;

(3) be in bold type;

(4) cover a space at least eleven inches wide and eight and one-half inches high;

(5) be posted and removed by an agent of the department.

10. S.C. Code Ann. § 61-3-500 (Supp. 1995) provides as follows:

The provisions of Section 61-3-490, requiring publication of notice prior to applying for a license, shall not apply to any person licensed under the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, when such licensee again applies to the department for a new license similar to that which he already holds to engage in the same business at the same place.

There is no provision in Chapter 9 of Title 61 which exempts the notice requirement found in § 61-9-320 upon an application for renewal of a beer and wine permit.

11. 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. South Carolina ABC Comm'n, 218 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). 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. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

12. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 305 S.C. 243, 281 S.E.2d 181 (1981). 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, 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).

13. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the issuance of a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the respondent/intervenor and the Protestant consisted not only of opinions and a claimed detriment to the area on Vendue Range, it was supported by credible evidence of long-standing problems. Acknowledging that this area is located in "downtown" Charleston, which is a major tourist area, a large portion of these problems are created by or are attributable to customers who frequent The Jukebox. The history of loud noise, vandalism, and destruction of private property together with management's inattention to the stipulations contained within the permit and license, which are part of the conditions allowing their continuation, evidence a total disregard both of the laws of this state, the enforcement powers of the Department and the rights of adjoining property owners to enjoy their properties peacefully. The testimony of Mrs. Needle and Ms. Tucker, together with the supporting documentation from the city of Charleston police department, of numerous "incidents" at The Jukebox, is strong evidence of a pattern on the part of petitioner's employees to operate the club /discotheque in a manner incompatible with the area and zoning district within which it is located, and inconsistent with the permit and license and its conditions. The safeguards employed by the owners and management of Systems and The Jukebox to minimize noise, i.e. hiring of off-duty police officers and a private security guard, have not been effective. Whether this is a result of inattention on their part, or an inability to alleviate these concerns is not determinable; notwithstanding, the result is that the situation is untenable . The evidence is overwhelming that the continuation of or renewal of this permit and license is not in the best interest of property owners, tenants, guests of property owners and the general public in the Vendue Range area. Petitioner, in the business license application, lists a square footage of 14,500, parking spaces of 100 (which is not the case), the usage of the business as a restaurant whereas it is a discotheque, a vast increase in the number of employees and hours of closing which are not correct. Petitioner has misrepresented the true facts.

The evidence clearly reflects that the continuation of this discotheque as presently operated greatly impacts on property values and greatly increases the stress on local law enforcement in providing for the safety and well-being of residents, their guests, tourists and others either living or visiting this neighborhood. Although petitioner argues that the "real" issue is that of competing interests between these several business enterprises, namely The Jukebox and the inns, and that each has legal rights to locate and coexist therein, in any case involving the grant of a permit and license, the Department in its staff determination, the trier of fact in a contested case proceeding, must consider much more. There is no absolute right in an applicant/person which would require the issuance by the State of South Carolina of a permit and/or license. The grant or issuance of either is a privilege solely authorized by our statutes and regulations and only remains in effect conditioned upon the permittee and/or licensee complying with their terms and provisions and with all applicable statutes, regulations and decisional law regulating such.

14. S.C. Code Ann. § 61-9-340 (Supp. 1995) states that upon a determination that an applicant meets the criteria set forth and has not misstated or concealed a fact in the application, the S.C. Department of Revenue and Taxation must issue the permit after payment of the prescribed fee.

15. S.C. Code Regs. 7-88 (1976), authorizing the imposition of restrictions to permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

16. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

17. A violation of any regulation or code section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the license pursuant to S.C. Code Ann. § 61-5-60 (Supp. 1995).

18. S.C. Code Ann. § 61-3-425 (Supp. 1995) prohibits the issuance of a license under Title 61 until the applicant presents to the department a signed statement both from the Department and the Internal Revenue Service showing the applicant does not owe the state or federal government delinquent taxes, penalties or interest. No evidence of compliance with this statutory requirement was provided to the court.

19. I conclude that the applicant/petitioner has not met his burden of proof in showing that he meets all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption ("mini-bottle") license with regard to its location and activity. Further, I conclude that the applicant/petitioner is in violation of the stipulations contained and merged in the permit and license, as originally issued in 1985, in operating the nightclub as a discotheque, in failing to limit the number of its customers to 300 nightly, in failing to close the discotheque at 2:00 a.m. each night, and in failing to create a "No Parking Zone" in front of the club. Also, I conclude that the location is unsuitable for the numerous reasons as stated in paragraph 13. Considering the totality of all of the above, I conclude that the location is not a proper one for the granting of and/or renewal of the permit and license .























ORDER

Based upon the above Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the requests of Michael J. Mendoza, Systems Management, Inc., d/b/a Jukebox, for renewal of the on-premise beer and wine permit and the business sale and consumption (mini-bottle) license for the nightclub/discotheque located at 4 Vendue Range, Charleston, Charleston County, South Carolina are denied.

AND IT IS SO ORDERED.



______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

May 29, 1996


Brown Bldg.

 

 

 

 

 

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