T & E Invs. Grp. SC v. S.C. Dep't of Revenue

• Court: South Carolina Administrative Law Court Decisions
• Writing for the Court: CRYSTAL M. ROOKARD, ADMINISTRATIVE LAW JUDGE
• Docket Number: 23-ALJ-17-0388-CC
• Decision Date: 23 January 2024
• Parties: T&E Investments Group, SC, LLC d/b/a Vault, Petitioner, v. South Carolina Department of Revenue, Respondent.

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T&E Investments Group, SC, LLC d/b/a Vault, Petitioner, v. South Carolina Department of Revenue, Respondent.

No. 23-ALJ-17-0388-CC

South Carolina Administrative Law Court Decisions

January 23, 2024

CRYSTAL M. ROOKARD, ADMINISTRATIVE LAW JUDGE

This matter is before the Administrative Law Court (the ALC or the Court) following a timely request by T&E Investments Group, SC, LLC d/b/a Vault ("Petitioner" or "Vault"), for a contested case hearing regarding the South Carolina Department of Revenue's ("Respondent" or "the Department") ^[1] denial of its application for a seven-day on-premises beer and wine permit and liquor by the drink license (hereinafter referred to as ABL license/permit) for its business, located at 3106 Broad River Road, Suite 7, Columbia, SC ("the location"). See S.C. Code Ann. § 1-23-600 (Supp. 2023); S.C. Code Ann. §§ 61-2-260, 61-4-520 and -6-910 (2022). The Department denied Petitioner's application due to its determination that the location of the proposed business was unsuitable. See §§ 61-2-90(6), -4-520(5), and -6-910.

On December 4, 2023, the parties were provided with timely notice that a hearing on the matter would be held on January 11, 2024, at the Administrative Law Court, Columbia, South Carolina. On January 11, 2024, the Court convened for a hearing on the matter, counsel for Petitioner and the Department were present as were Eric Priester, sole owner of the Vault and Major Raphaelle Gonzales, a law enforcement officer for the Richand County Police Department (RCPD).

FINDINGS OF FACT

Following a thorough review of the record before the Court and, taking into consideration the burden of persuasion by the parties and testimony of the witnesses, the Court make the following Findings of Fact by a preponderance of the evidence:

1. On March 22, 2023, the Department received an application for a seven-day on-premises beer and wine permit and liquor by the drink license (hereinafter ABL license) from T&E Investment Group SC, LLC d/b/a Vault ("Vault" or "Petitioner"), for the business located at 3106 Broad River Road, Suite 7, Columbia, SC ("the location"). See S.C. Code Ann. § 61-2-90. The location is in a strip mall with a common parking area for the businesses located therein. As will be discussed further below, the Vault is the only establishment in the strip mall which operates into the early morning hours.

2. The application listed Mr. Eric Priester as the sole-owner and described the business as a Restaurant and Bar. Mr. Priester is over the age of twenty-one and of good moral character. The application satisfied all statutory requirements but for the requirement that the location be a "proper location." See §§ 61-2-90(6) -4-520(5), and -6-910.

3. Mr Priester indicated that he entered the night life business approximately two-and-a-half years ago when he opened "The Ave."^[2]The Ave has a beer and wine permit and liquor by the drink license, and there have been no prior incidents against it nor revocations of The Ave's ABL license. Mr. Priester informed the Court that he intends to operate the Vault similar to The Ave, with each business operating at the same time.

4. Mr. Priester retains exclusive management responsibilities for his businesses yet relies upon his employees to assist with business operation. He stated that his employees are instructed to contact him should an incident arise when he is not on premises.

5. With regards to the location of issue in this case, Mr. Priester explained that around March 2023, he became aware that the Vault was experiencing financial difficulties, this elicited initial conversations with the Vault's prior owner regarding a transition of ownership. Mr. Priester testified that he reached an agreement was the prior owner that it would complete its scheduled events while Mr. Priester would assume responsibility for payment of past and future rent for the location, with Mr. Priester assuming exclusive ownership of the Vault around mid-March.

6. Pursuant to the understanding, Mr. Priester confirmed that he took over and first opened the doors to the general public in mid-March. While the Vault opened its doors to the public, Petitioner did not charge an entrance fee nor serve food or alcohol at that time.^[3]Mr. Priester emphasized that the sole impetus of the opening was to ensure that the Vault "remain[ed] relevant" compared to other clubs in the area. It was Mr. Priester opinion that if the business temporarily closed it would have a financial impact on the business. Certainly, because a gap in operations would result in a loss of existing patrons. The Court finds this testimony to be significant as it demonstrates Petitioner's desire to retain the patronage of clients who previously frequented the location under its prior ownership.

7. Subsequently, Petitioner obtained necessary business, admissions, and liquor licenses and officially opened the business on May 18, 2023.

8. During the hearing, Major Gonzales from the Richland County Police Department (RCPD) testified to his concerns regarding the lack of suitability of the location for an ABL permit/liquor license.^[4] The Court found Major Gonzales to be a highly credible witness and finds his testimony regarding the suitability of the location to be highly probative.

9. Major Gonzales indicated that the area near the location has several other nightclubs and that the it is one of RCPD's highest call areas. In addition to the area being a source of frequent respondent calls, Major Gonzales discussed specific concerns regarding Petitioner's location, he stated that it was not a question of "if but rather when will RCPD receive a call to the location.

10. Major Gonzales discussed the nature of past respondent calls to the location, describing the setting as chaotic, with frequent loitering on-site. He stated that because of the location's reputation, it is necessary to sends multiple patrols to the location in order to ensure the safety of its officers. It was Major Gonzales' belief that the addition of alcohol on the premises would further exasperate the volatility of the location. When asked if Petitioner's location was salvageable, Major Gonzales testified that it was his opinion that it was not.

11. In addition to the aforementioned concerns, Major Gonzales discussed specific incident which have occurred at the location between February and June 2023.^[5]Major Gonzales highlighted a particular incident, one occurring on June 11, 2023 which resulted in a justifiable homicide. Major Gonzales further opined that based upon the bright lightning near Petitioner's location it could be inferred that the incident was directly connected to the Vault.^[6] Mr. Priester was not at the location at the time of incident, although does not dispute its occurrence. To corroborate Major Gonzales testimony, the Department introduced photos captured from a surveillance camera in the area. The photos displayed an assailant holding a long gun in Petitioner's parking lot, as well as individuals loitering in the lot until 5:07 A.M.^[7] The Court acknowledges that the incident occurred at a time after which Petitioner allegedly closes. Nevertheless, Mr. Priester was not on premises thus presenting a possibility that the Vault was operating in a manner different from that which Mr. Priester may have intended. When considered in tandem with the photos, specifically the volume of vehicles in the parking lot at 4:24 A.M, and the fact that there were no other businesses in operation, the only reasonably conclusion is that, as stated by Major Gonzales, it can inferred that the incident was directly connected to the Vault. Shortly thereafter, Petitioner's temporary liquor license was suspended. Notably, Major Gonzales informed the Court that since the Vault's closure there has only been one service call to the location. Further supporting, a connection between the Vault and prior criminal activity.

12. Mr Priester does not deny the events which have occurred at the location although maintains that the location is suitable. Specifically, he discussed preventive measures which Petitioner has or intends to undertake to promote safety at Petitioner's location. Petitioner informed the Court that beginning on July 1,2023, Executive Protection LLC will staff a minimum of four-armed security guards at the location at all times. Nevertheless, Mr. Priester did not deny that the prior owner had security at the location. Petitioner has also installed additional lighting for its parking area and interior and exterior security cameras to monitor the premises of its location and he intends to restrict loitering in Petitioner's parking lot, requiring patrons to exit the parking lot within five-minute or they will be escorted off the premises. Mr. Priester further discussed the layout of the premises, explaining that barriers are ready to be put into place to prevent traffic flow into Petitioner's parking area from the surrounding establishments. Mr. Priester also intends to change the business name to "Vice City Bar and Grille" and to utilize identification scanner to maintain a record of its patrons and to ensure that Petitioner's patrons are over the age of twenty-one. Finally, Mr. Priester stated that Petitioner plans to work with RCPD, however Mr. Priester's testimony is contradicted by Major Gonzales' indication that despite RCPD's repeated attempts, Mr. Priester has been non-responsive to RCPD's calls. Admittedly, Mr. Priester has initiated the implementation of some of these measures, however, the Court finds it concerning that that Mr. Priester was not proactive in implementing these remedial measures until after the justifiable homicide, especially when considering the reputation of this location. When considered...