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:
Isaiah N. Thompson, Palladium, Inc., d/b/a The Palladium vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Isaiah N. Thompson, Palladium, Inc., d/b/a The Palladium

Respondents:
South Carolina Department of Revenue and City of North Charleston
 
DOCKET NUMBER:
98-ALJ-17-0352-CC

APPEARANCES:
James H. Harrison, Esquire for Petitioner

Arlene D. Hand, Esquire for Respondent

Kenneth E. Allen, Esquire for Intervenor
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-1310 and 12-60-1320 (Supp. 1997) upon the application of Isaiah N. Thompson and Palladium, Inc., d/b/a The Palladium, for the renewal of an on-premises beer and wine permit and minibottle license. Protests were filed against the application for renewal. On May 15, 1998, the South Carolina Department of Revenue ("DOR") issued a final department determination denying the application for renewal on the basis that the location was unsuitable for the sale of beer, wine, or liquor and that the location has negatively affected neighboring residential areas.

The City of North Charleston moved to intervene and was admitted as a party, and a contested case hearing was held on September 23, 1998 in Charleston, South Carolina. Upon review of the relevant and probative evidence and applicable law, the application for renewal is denied. Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

FINDINGS OF FACT

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

Notice of the time, date, place and subject matter of the hearing was given to the parties and protestants.

Isaiah N. Thompson is the applicant for renewal of an on-premises beer and wine permit and a minibottle license for a location at 3378 Ashley Phosphate Road, North Charleston.

The Petitioner is over the age of twenty-one.

The applicant is a legal resident of the United States; 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 this State for at least thirty days before the date of application.

State Law Enforcement Division (SLED) reports no criminal history on Petitioner.

The applicant, and his partners and co-shareholders are of good moral character.

Petitioner has never had a beer or a wine permit revoked.

The City of North Charleston protested the application on the basis of its unsuitability for the sale of beer, wine or liquor and intervened as a party.

Several area residents protested the application on the grounds that lack of parking; noise, including loud music and gunshots; and public urination have disturbed residents in the area and have threatened the safety of nearby residents.

The proposed location operates as a nightclub, sports bar and restaurant.

The facility is 14,000 square feet, and its capacity is 1,200 patrons. Normal attendance ranges from 400 to 500 people.

Approximately 160 lined parking spaces are located at the proposed location. Patrons also park at unlined spaces around the location as well as across from the location at other commercial businesses on Ashley Phosphate Road.

Ashley Phosphate Road is a four-lane thoroughfare.

The area surrounding the proposed location is primarily residential, with several commercial properties located on Ashley Phosphate Road.

Three residential communities adjoin the location: Pepperhill Apartments, Crosspoint Apartments and Palmetto Townhouses Apartments.

The nearest residence is located sixty-five feet from the proposed location.

Agape Baptist Church is located 325 feet from the proposed location and is the closest church to the location.

Permitting the proposed location has resulted in several occasions of significantly increased traffic in the area.

The location is open Thursday, Friday and Saturday nights as well as on special occasions. Attendance is quite high during the special events such as concerts and "college night".

The large size of the facility and the number of patrons it accommodates makes it difficult for law enforcement to be able to control a crowd in the event of a disturbance.

Approximately 2,000 patrons attended a Thanksgiving event at the proposed location on the evening of November 27, 1997. A similar incident occurred in June 1998.

The Thanksgiving event resulted in a civil disturbance (fighting, people passing out or being trampled, pushing), which required police intervention to disperse the crowd.

While operating under its current permit and license, the location has had a history of chronic law enforcement problems including arrests on the property for possession of crack cocaine with intent to distribute, car break-ins, thefts, malicious injury to personal property, distribution of illegal narcotics, illegal possession of firearms, disorderly conduct, possession of alcohol by minors, open container violations, simple assault, assault and battery of a high and aggravated nature, assault with intent to kill, assault on a police officer, threats, drinking in public, urinating in public, civil disturbances and civil disorder.

A majority of the problems occurring at the Palladium take place outside of the facility. Security officers patrol the exterior of the building.

Previous congregations of people at the location frequently have been attended by consumption of alcohol and disorder in the community. Residents feel threatened by patrons returning to their vehicles parked in the neighborhood. Patrons have been discourteous to residents by parking on residents' property, using profane language, throwing trash and debris on the ground, and urinating on property.

The excessive noise, civil disturbances and other law enforcement problems indicate that the Palladium lacks a reputation for peace and good order in the community.

Petitioner and owners of the Palladium have met with residents and law enforcement about the concerns cited. The owners have implemented measures to address these concerns that include posting additional "No parking" signs, towing vehicles illegally parked, placing barriers to the entrances of the residential areas to redirect traffic, and hiring additional security guards (increasing the number to fourteen).

The owners have not been able to alleviate the problems occurring at the location.

The character of the business would remain the same and would continue to present a challenge for law enforcement if the permit is renewed.

The continued operation of the proposed location with a beer and wine permit or minibottle license would be burdensome upon the law enforcement resources in the area.

Renewing the beer and wine permit and minibottle license would negatively affect the community.

The location is unsuitable for the renewal of an on-premises beer and wine permit.

The location is unsuitable for the renewal of a business sale and consumption (minibottle) license.

CONCLUSIONS OF LAW

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

The Administrative Law Judge Division has subject matter jurisdiction over contested cases concerning the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260 (Supp. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (1986 & Supp. 1997) and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1997).

This tribunal has personal jurisdiction over the parties.

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, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

The standard of proof in a contested case hearing is a preponderance of the evidence. National Health Corp. v. South Carolina Dep't of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

As the party asserting the affirmative of an issue, the Petitioner bears the burden to prove he is entitled to renewal of the minibottle license and beer and wine permit. 29 Am. Jur 2d Evidence § 127 (1994); Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:3 (1994).

Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, privileges granted in the exercise of the state's police power. See Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

Statutory provisions governing biennial minibottle licenses and licensees are found in the Alcoholic Beverage Control Act, S.C. Code §§ 61-6-10 et seq. (Supp. 1997) ("ABC Act").

DOR may refuse to renew a minibottle license upon finding that "the applicant no longer meets the requirements of Section 61-6-1820." S.C. Code Ann. § 61-6-1830(1) (Supp. 1997).

S.C. Code Ann. § 61-6-1820 provides in part, "The department may issue a license . . . upon finding: . . . (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. . . ." S.C. Code Ann. § 61-6-1820(2) (Supp. 1997).

The excessive noise, other disturbances to the surrounding residents, and law enforcement problems indicate that the Palladium lacks a reputation for peace and good order in the community, as required by S.C. Code Ann. § 61-6-1820 (Supp. 1997).

"A person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1997).

"No permit authorizing the sale of beer or wine may be issued unless . . . (6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one. (7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches." S.C. Code Ann. § 61-4-520 (Supp. 1997).

As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

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, 322 S.C. 7, 471 S.E.2d 154, 157 (1996), citing McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).

Traffic patterns in the area are relevant to the issuance of a license to sell beer, wine or alcoholic beverages. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

Law enforcement considerations are a factor in determining the suitability of a location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); Palmer v. South Carolina ABC Comm'n. supra.

The evidence clearly establishes that this business has been the site of numerous criminal disturbances in the recent past. These disturbances have required police attention causing a strain on law enforcement resources. The application for renewal should be denied. See Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

The proposed location is unsuitable for renewal of the permit because of the past history of the proposed location and the likelihood that the problems associated with the proposed location will continue, regardless of the good intentions of the Petitioner. The location's business activity also renders the location unsuitable for a beer and wine permit, given its close proximity to residences.

The congregations of people at the location frequently have been attended by consumption of alcohol and disorder; the renewal of the beer and wine permit will worsen the situation, and, therefore, the renewal should be denied. See Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Because the location is unsuitable, the proposed location does not meet the statutory requirements set forth in S.C. Code Ann. § 61-4-520 (Supp. 1997) to hold a beer and wine permit and must be denied.

The Palladium does not have a reputation for peace and good order in the community, therefore, Petitioner and the proposed location do not meet the requirements set forth in S.C. Code Ann. §§ 61-6-1820 and 61-6-1830 for renewal of a minibottle license, and the application must be denied.

ORDER

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

ORDERED, that the application of Isaiah N. Thompson, Palladium, Inc., d/b/a

The Palladium, for renewal of an on-premises beer and wine permit and minibottle license be denied. AND IT IS SO ORDERED.



__________________________________

ALISON RENEE LEE

Administrative Law Judge

December 4, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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