STATE OF NORTH CAROLINAIN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF CUMBERLAND 03 ABC 1037
C & C ENTERTAINMENT, INC., )
d/b/a CAROLINA LIVE)
Petitioner,)
)
vs.)DECISION
)
NORTH CAROLINA ALCOHOLIC)
CONTROL COMMISSION)
Respondent)
On July 31, 2003, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Fayetteville, North Carolina. On September 3, 2003, Petitioner submitted a proposed Decision pursuant to the undersigned’s verbal ruling for the Petitioner during a telephone conference between the parties. The undersigned closed the official record on September 3, 2003.
APPEARANCES
Petitioner:David T. Courie, Esq.
Beaver Holt Sternlicht Glazier Britton & Courie
230 Green Street
Post Office Box 2275
Fayetteville, North Carolina 28302-2275
Respondent:LoRita K. Pinnix
Assistant Counsel
N.C. ABC Commission
4307 Mail Service Center
Raleigh, North Carolina 27699-4307
STATUTES AT ISSUE
N. C. Gen. Stat. §18B-901(c)(7) & (8)
4 NCAC 2S.0107
ISSUES
1.Whether Respondent properly denied Petitioner’s application for on-premise malt beverage, on-premise unfortified wine, and mixed beverages private club permits pursuant to N.C.Gen. Stat. 18B-901(c)(7) based upon the local governing body’s recommendation that the location is not a suitable location to hold ABC permits?
2.Whether Respondent properly denied Petitioner’s application for on-premise malt beverage, on-premise unfortified wine, and mixed beverages private club permits pursuant to N.C.Gen. Stat. 18B-901(c)(8) on the grounds that the operation of the Petitioner’s business would be detrimental to the neighborhood?
FINDINGS OF FACT
Based upon the exhibits and testimony admitted at the hearing and the documents on file, the undersigned makes the following findings:
A. PROCEDURAL BACKGROUND
1.On May 30, 2002, Respondent issued temporary on-premise malt beverage, on-premise unfortified wine, and mixed beverages private club permits to Petitioner for the business located at 6323 Raeford Road, Fayetteville, North Carolina. Mr. Fred Clark is the owner of Petitioner corporation. Respondent issued these temporary permits over the objections of the local government, and some immediate neighbors of Petitioner.
2.Petitioner’s temporary permits were originally scheduled to expire on August 27, 2002. However, Respondent reissued Petitioner’s temporary ABC permits three subsequent times until May 2003.
3.On May 30, 2003, shortly after the issuance of the fourth temporary permit, Respondent rejected Petitioner’s application for permanent ABC permits, and revoked Petitioner’s fourth temporary ABC permits. In the Notice of Rejection, Respondent noted the reasons for disapproving Petitioner’s permanent applied-for ABC permits as follows:
I.The recommendations of the local governing body which are that the operation of the business at this location is detrimental to the neighborhood, as provided by G.S. § 18B-901(c)(7).
II.Any other evidence that would tend to show whether the applicant would comply with the ABC laws and whether the operation of the business at that location would be detrimental to the neighborhood, as provided by G.S. 18B-901(c)(8) to wit:
A)On or about March 5, 2003, at 3:15 pm, permittee’s employee and corporate officer, Kenneth Anthony Clark, refused to permit ALE Agent, D.J. Hales, to enter the licensed premises to make a lawful inspection, in violation of G.S. § 18B-502(a)(b).
B)On or about March 5, 2003, at 3:15 pm, permittee’s employee and corporate officer, Kenneth Anthony Clark, interfered with or failed to cooperate with ALE Agent D.J. Hales, a law enforcement officer engaged in the performance of this duties, in violation of 4 NCAC 2S.0213.
C)On or about April 13, 2003, at 10:45 pm, the applicant’s employee allowed the establishment to be open to the general public by failing to limit use of the facilities of this private club to members and guests, in violation of 4 NCAC 2S.0107(a).
D)On or about April 13, 2003, at 10:45 pm, the applicant’s employee granted membership to Investigator Michael Torres, sooner than three days after the receipt of an application, in violation of 4 NCAC 2S. 0107(c)(5).
E)On or about April 19, 2003, at 11:45 pm, the applicant’s employee allowed the establishment to be open to the general public by failing to limit use of the facilities of this private club to members and their guests, in violation of 4 NCAC 2S .0107(a).
F)On or about May 10, 2003, at 11:00 pm, the applicant’s employee allowed the establishment to be open to the general public by failing to limit use of the facilities of this private club to members and their guests, in violation of 4 NCAC 2S .0107(a).
G)On or about March 5, 2003, April 13, 2003, April 19, 2003, and May 10, 2003, the applicant failed to superintend in person or through a manager the business for which a permit was issued, in violation of G.S. § 18B-1005(b).
4.On June 11, 2003, Petitioner filed a petition for a contested case hearing with the Office of Administrative Hearings appealing Respondent’s May 30, 2003 decision. Petitioner moved for an expedited hearing.
5.On July 18, 2003, the undersigned granted Petitioner’s Motion for an Expedited Hearing.
B. THE COMMUNITY AND SURROUNDING NEIGHBORHOOD
6.Petitioner’s business is located within the Falcon Village shopping center at 6323 Raeford Road, Fayetteville, North Carolina. Falcon Village shopping center is a predominately retail oriented shopping center, that includes Skibo Barber Shop and Royal Cleaners. Petitioner leases space of a former grocery store in the shopping center. There are approximately 126 spaces located directly in front of the shopping center. None of the parking spaces are specifically assigned to particular tenants of the shopping center.
7.Raeford Road is a seven to nine lane highway passing through the middle of Fayetteville, North Carolina. Within one eighth of a mile of Petitioner’s place of business is the intersection of Raeford Road and 401 Bypass, a seven to nine lane highway that connects north Fayetteville and southwest Fayetteville. Both roads are unquestionably dominated by commercial businesses and properties as well as commercially and professional classified plots of land.
8.Immediately adjacent to Falcon Village shopping center are the Falcon Village apartments. This apartment complex consists of 6 buildings of approximately one hundred and eighteen (118) single bedroom apartments. A majority of the tenants are enlisted in the military. According to the apartment’s management company, these apartments usually hold a 98% occupancy rating.
9.Bingham Drive is located immediately east of Falcon Village shopping center. Bingham Drive is a three lane road which intersects with Raeford Road at a stop light intersection, and connects traffic from Raeford Road to the Hope Mills city limits south of Fayetteville.
10.A residential area is located between Falcon Village shopping center and Bingham Road. Approximately 10 residences are located immediately adjacent to the Falcon Village shopping center. West Darrow Drive is a 2 lane road that runs through this residential area, and connects Bingham Drive directly to the Falcon Village shopping center parking lot. Other homes are located farther down Bingham Drive, and behind Falcon Village apartments. Another residential area is located directly across Bingham Drive from the 10 residences adjacent to Falcon Village shopping center. (Resp Exh 1)
11.A recently built Eckerd drug store, a branch of BB&T Bank, and Classic Car Wash are located in separate outparcels or buildings adjoining and/or adjacent to Falcon Village shopping center’s parking lot. A number of strip shopping centers are located just east of the Falcon Village shopping center on Raeford Road. (Resp Exh 1)
12.There are other ABC permitted dance clubs located in the area of Petitioner’s business. Odyssey 2000 is an ABC permitted establishment located approximately 2½ miles down Raeford Road from Carolina Live near the intersection of Raeford Road and Skibo Road. Mojo’s and Players’ Billiards are also ABC permitted establishments located approximately 2½ miles from Carolina Live.
13.6323 Raeford Road is the physical address for all tenants of the Falcon Village shopping center. Falcon Village shopping center and Petitioner’s business, Carolina Live, are located within the Fayetteville city limits. The Fayetteville city limits ends behind the shopping center and the Falcon Village apartments. There are no curfews for the City of Fayetteville or Cumberland County that affect patrons who are age eligible for admittance at Carolina Live.
14.Fayetteville, North Carolina is a densely populated metropolitan community with substantial retail and commercial businesses, both preexisting and in development. Over the past several years, the area immediately surrounding Falcon Village shopping center has seen further commercial growth, and increased commercial and professional property valuations.
C. N.C. GEN. STAT. 18B-901(c)(7) LOCAL GOVERNMENT OBJECTION, N.C. GEN. STAT. 18B-901(c)(8) DETRIMENTAL TO THE NEIGHBORHOOD, AND N.C. GEN. STAT. § 1005(b)
15.Prior to the opening of Carolina Live, Mr. Fred Clark approached neighboring merchants and residents, introduced himself and his business, and asked for suggestions, complaints, or compliments in an effort to open the lines of communication with these neighbors.
16.Petitioner made a substantial investment in the leased space, focusing on aesthetics and fire safety. Despite averaging between five hundred and eight hundred (500 – 800) patrons a night, Petitioner invested the amounts necessary to obtain a fire occupancy approval for an excess of two thousand people (2000).
17.Mr. Clark met with Bob Stocks, Fayetteville ALE Supervisor, prior to opening the business, and discussed what Petitioner needed to do to obtain his ABC permits. Mr. Stocks walked the shopping center’s parking lot area and suggested Petitioner obtain additional parking. Mr. Clark then talked with Fayetteville Police Officer Pratt regarding his suggestions. Officer Pratt suggested Petitioner provide security in the adjacent bank parking lot.
After receiving these suggestions, Petitioner immediately obtained a lease from the owners of an adjacent vacant commercial land for additional parking for his customers. Petitioner also obtained permission from owners of the adjacent BB&T, and the car wash for usage by his patrons during Carolina Live’s business hours. Petitioner’s security supervised these additional lots for overflow parking. (See Off-duty Police Officer testimony; Pet Exh 1).
18.From 10:00 p.m. until approximately 2:30 a.m. on Saturday nights, Carolina Live was open for business. Each night, Petitioner employed an average of eight to twelve off-duty officers as security for the business to work immediately before, during, and after Carolina Live’s hours of operation. Security consisted of Fayetteville Police off-duty officers and private security. Before opening for business each night, Mr. Clark held a meeting with all security. Mr. Clark opened each meetings with a prayer, and addressed any particulars for that evening if a live group, performer, or other special activity was occurring that night. Clark then reviewed each security guard’s responsibilities for the evening.
19.Security was divided into teams, depending on each security officer’s location and duties for the night. Each security officer was assigned a specific area of the parking lot or inside the premises, such as front, back or adjacent parking lots, front door entrance, or inside the business itself. Private security wore t-shirts with “Carolina Live, Staff” printed on their shirts. Off duty Fayetteville police officers wore their uniforms. Each security guard located outside the business was required to direct vehicular traffic of patrons in their designated areas, and monitor foot traffic of patrons in their areas.
20.Mr. Clark operated Carolina Live using a “hands-on” approach. That is, during each night of operation, Clark circulated throughout the business, and actively oversaw each aspect of operating the business. The off-duty officers and staff confirmed how Petitioner applied this “hands-on” approach in running Carolina Live.
21.Petitioner’s outside security directed traffic from Carolina Live onto Raeford Road, and away from nearby residences. Security and staff usually cleared the parking areas within ten to twenty minutes after the business closed. All staff collected trash in the parking lots and surrounding adjacent property before being dismissed from employment for the night.
22.When Carolina Live closed for the night, some patrons would often play loud music in their cars while leaving the parking lot, some would litter, and some would talk loudly and/or yell. Once patrons left the Petitioner’s parking areas, many patrons of Carolina Live frequently drove approximately 1-1½ miles away from Petitioner’s business, congregated in the parking lot of other businesses that were open, and played loud music. These businesses included the 24-hour Waffle House, the 24-hour Kangaroo convenient store, and Wendy’s.
23.Occasionally fights occurred both inside and outside Carolina Live during Carolina Live’s hours of operation. However, a preponderance of the evidence proved that Petitioner’s security efficiently addressed any disruptive patrons located inside the business, and removed those patrons from the business. Once security removed these patrons from the club, outside security handled the disruptive patrons until they left the premises on their own accord or with assistance from security or off-duty Fayetteville Police. There was no other evidence establishing that any crimes occurred inside Carolina Live or in the parking lot areas controlled by Petitioner’s security during Carolina Live’s hours of operation.
24.Fayetteville Police Sergeant George Urian supervised 10 police officers in the Cross Creek district encompassing the western section of Fayetteville, including Falcon Village shopping center. Sergeant Urian worked the midnight shift, or from 10:00 p.m. until 8 a.m. Tuesday through Friday. Sergeant Urian responded to one fight taking place in the parking lot beside Eckerd’s Drug adjacent to Falcon Village shopping center. He observed approximately 50 people in the parking lot, at least 5 off-duty Fayetteville Police, and persons preventing other persons from fighting. However, Sergeant Urian could not connect this particular fight with the operation of Petitioner’s business at that location on Raeford Road. Urian admitted that neither he nor his squad had responded to calls at the Petitioner’s business itself.
25.Fayetteville Police Sergeant Michael Petti was also assigned to the Cross Creek district. He responded to 3 dispatch calls to 6323 Raeford Road. On August 26, 2002 around 1:30 a.m., Sgt. Petti arrived at Carolina Live and saw several county units and 7-8 city police officers in the parking lot of the Falcon Village shopping center. Fire department personnel were clearing the parking lot, along with Petitioner’s security. Fayetteville Police had one person in handcuffs, and in his opinion, the situation appeared to be under control.
26.In either April or May 2003, Sgt. Petti observed a vehicle without a license plate, parked on the side of Falcon Village shopping center near the car wash. Sgt. Petti stopped the vehicle, and after the individual argued with another officer, Sgt. Petti issued the individual a citation. The individual was “pretty irate.” Sgt. Petti could not connect that individual with Carolina Live, as a patron, or employee, or its operation.
27.On Saturday night, July 26, 2003, Sgt. Petti responded to a dispatch call for “shots fired” at 6323 Raeford Road. Sgt. Petti was the first officer on the scene. He met with a security guard of Carolina Live who advised him that a firecracker was lit inside the club. Sgt. Petti’s chief complaint was that every Saturday night around 2:30 a.m., within the last year, he had to increase patrol in this area of town to handle the “large crowds coming from 3-4 clubs closing” who drive to open businesses, and loiter and play loud music. Specifically, Fayetteville Police usually increased its patrol to this area of town to handle the increased traffic on Raeford Road, West Darrow Drive, Bingham Drive, and Raeford Road/Skibo Road intersection. Fayetteville Police complained that Petitioner’s patrons significantly caused this traffic increase due to the large number of patrons at Carolina Live.
However, a preponderance of the evidence proved that other nightclubs also closed at the same time as Carolina Live, and also contributed to an increase in highway traffic during this time. Sgt. Petti admitted that any increase in traffic usually lasted for approximately “15-20 minutes” or a “short spurt of time,” and that the traffic at these times was still lighter than highway traffic during lunchtime on a weekday. In addition, the dance club Odyssey 2000 also has a large number of patrons attend its business.
28.Staff Sergeant Edward C. Welch, Jr., an Army military police investigator, investigates facilities to determine if sites should be sanctioned by the military as off-limits area for its soldiers. Investigator Welch investigated Carolina Live to determine if the military should sanction Carolina Live off-limits for its soldiers. Starting on Saturday March 3, 2003, Investigator observed the parking lots around Falcon Village shopping center from 10:00 p.m. until 2:00 a.m. while Carolina Live was open for business. Investigator Welch observed these areas for 11 out of 14 consecutive Saturday nights.
During that time, Welch saw numerous people urinating behind and beside the shopping center, and saw a couple having sex in a vehicle that was parked in the grassy parking lot behind the shopping center. During those 11 Saturday nights, Welch witnessed only 4 fights. The 4 fights resolved themselves and moved on. Welch never saw any patrons possessing weapons, and did not witness any stabbings, gunfights, or ambulances come to the business.