February 27, 2023

Changes to City of Charleston Late Night Entertainment Establishment

Contributor: William R. Stroud and Ryan P. Henry, Moore & Van Allen PLLC

Effective as of December 13, 2022, the City of Charleston (the City) made major changes to the Late Night Entertainment Establishment Operational Permit (LNE Permit) in an effort to address concerns of noise, safety, and quality of life within the City. While you or your client may not agree with these concerns, complying with these changes is non-negotiable (yes, even hotels must comply). Procedurally, the process for a business intending to operate as a late-night entertainment establishment (LNE) has not changed; substantively, however, the types of businesses now classified as an LNE and LNE Permit requirements have changed significantly. Beginning December 13, 2022, any new business must apply for an LNE Permit under the new LNE ordinance; however, existing LNEs must come into compliance with the new ordinance and reapply for an LNE Permit by February 13, 2023. This post will highlight the major changes to the LNE Permit and will alert new and existing LNEs of the potential consequences of violating the ordinance.

Under the new framework, an LNE is defined as: any bar, restaurant, venue, or commercial establishment that currently allows on-premises consumption of beer, wine, or alcohol, and remains open after midnight, regardless of zoning designation located within the [c]ity. Notably, this new definition includes accommodations uses, (i.e., hotel bars), while the previous LNE ordinance exempted accommodations uses.

A prerequisite for the LNE Permit is a valid Business License Certificate of Occupancy (BLCO) (discussed more below).

If a business intends to operate as an LNE, the first step is to determine whether the business is located within (500) feet of a residential zoning district. To make this determination, the City’s website provides an interactive mapping tool that is fairly user friendly. If a business is located within (500) feet of a residential zoning district, that business must apply for a Late Night Use Special Exception from the Board of Zoning Appeals (BZA-Z). If such business is within the Mixed Use 2, Mixed Use 2 Workforce Housing, Business Park, Heavy Industrial, or General and Light Industrial districts (not in the General Business Night Overlay or Light Industrial Late Night Overlay Zones), and additionally meets all the conditions in Zoning Code Sec. 54-206-y, then an LNE may be permitted. If the business is not within (500) feet of a residential zoning district, this step may be skipped.

As mentioned above, an LNE Permit will not be granted until a BLCO has been validly issued and processed. For existing businesses, this should not be a problem and the LNE permit application can be submitted on the City’s Citizen Access Portal. For new businesses, the BLCO and LNE Permit can be applied for simultaneously. The City recommends submitting the application(s) at least 30 days before such planned opening for late-night use. For any existing business seeking renewal of an LNE Permit, the existing business must provide proof of compliance with the new LNE ordinance. Renewal applications may be submitted up to (90) days but not less than (30) days before the expiration date for the existing LNE Permit, to allow City staff time to review and evaluate the request to renew the LNE Permit.

A business intending to operate as an LNE must submit with its LNE Permit application an approved Security & Management Plan (S&M Plan) to provide for the safety of patrons and employees. The S&M Plan will describe with particularity the days and hours of operation, crowd management measures to be taken, ratio of security personnel to occupants (both in and outside the premises), any parking areas under the control of the establishment, and means of controlling access, and underage drinking and serving. Under the previous framework, a business was required to have a certain number of security staff based upon the business’ “approved maximum occupancy load”. The new framework provides more flexibility as security staff is based on the actual number of people in the establishment. For example, if the business expects fewer customers because it will be a rainy Wednesday night, the business can plan on having fewer security personnel that night.

Further, the S&M Plan allows the business to assign the responsibility of security to staff, as needed — security staff can be employees of the LNE or third-party contracted security personnel, but they must be readily identifiable through standardized clothing and/or clear identification. The designated security staff must have appropriate training in safety management to facilitate safe practices in accordance with the S&M Plan and must maintain a presence at each public entrance of the premises from 10:00 pm to closing. The minimum ratio of security staff to actual occupancy of the LNE is (1) security staff member for every (50) actual occupants, up to (350) actual occupants. After (350) actual occupants, (1) security staff member is required for each additional (100) actual occupants. Further, LNEs must install and/or maintain exterior lighting and video surveillance equipment, if required by the City during the LNE Permit application review. The S&M Plan should outline the LNE’s exterior lighting and video surveillance responsibilities.

Within the S&M Plan, the new ordinance requires LNEs to implement a Preventing Underage Drinking Plan by 10:00 pm each night to ensure that appropriate ID checks are conducted to verify patrons are (21) years of age or older. Additionally, all LNEs that serve food past 10:00 pm and allow patrons under (21) years old into the facility must establish a method to identify the underage patrons. Other requirements include ensuring staff has received appropriate training to check IDs. Notably, ID scanners are encouraged but not required. However, LNEs that fail to adhere to their written plan may be required to implement additional security measures.

The new framework dissolved the old ordinance’s widely loathed LNE Review Committee. LNE Permit applications will be reviewed by relevant City staff as part of standard procedure in hopes of speeding up the review process If approved, an LNE Permit is valid for (2) years, while the previous LNE Permit equivalent was only valid for (1) year.

Perhaps the most significant change under the new LNE ordinance relates to violations. Violations are triggered by the issuance of a court summons, although court summons are rarely issued for a first violation unless the violation is an immediate life safety hazard situation or the LNE fails to correct a known repetitive issue. The goal of the City is to educate LNEs on alcohol safety. To further accomplish that goal, the City will typically offer educational meetings and training before issuing a court summons. Further, the City will occasionally issue a “violations notice” instead of court summons. A violations notice will typically provide the LNE in violation of the ordinance with a timeline to obtain compliance.
Unlike the previous ordinance, the new framework limits violations to the LNE ordinance itself. However, it is incumbent upon any LNE to refrain from knowingly, or recklessly allowing any specified criminal activity to occur in or on the premises of the establishment. In other words, although violations are limited to the ordinance, knowingly or recklessly allowing specified criminal activity to occur is deemed a violation of the ordinance.

Once a court summons has been issued, there is a series of consequences based upon a first, second, and third issuance of a court summons.

• Upon the 1st issuance of court summons, there will be a mandatory remediation meeting between the LNE and City staff to review the LNE permit, the violation, and discuss strategies to prevent future violations. Note: it is at this mandatory remediation meeting where the City could require ID scanners to prevent underage drinking as mentioned above.
• Upon the 2nd issuance of a court summons, there will another mandatory remediation meeting, and the Director of Revenue Collections may issue a written notice of intent to suspend the LNE permit up to (90) days.
• Upon the 3rd issuance of a court summons, the Director of Revenue Collections will issue a written notice to suspend the LNE up to (1) year. Lastly, an emergency suspension may be invoked if a situation arises that is determined by a Fire Marshal, police office, or Code Enforcement Officer to require immediate action to eliminate a situation that poses imminent threat to persons or property, to preserve the public health, safety, and welfare of the public, or to restore public peace and order.

Lastly, the appeals process has been updated. No longer will the hearing officer model be used, but rather, appeals will now go through the Business Licensing Committee. The appellant LNE will have ten (10) days after delivery of written notice to submit a written request for a hearing. If the appellant does not request a hearing within such 10-day period, the written notice shall become a final denial or revocation. Within thirty (30) days of a final decision of the Business License Committee regarding a suspension or revocation of an LNE permit, the LNE may appeal the decision of the Business License Committee by filing with the clerk of court a petition in writing setting forth why the decision is contrary to law. Nevertheless, the Director of Revenue Collections reserves the right to immediately suspend or revoke an LNE permit in cases where the action that is the basis for the revocation (a) resulted in great bodily harm or loss of life; or (b) resulted in damage or loss of property in an aggregate amount of $100,000 or more.

Hopefully this post will be helpful in understanding the major changes to the LNE Ordinance, however, this post is not intended to be an exhaustive list of the new changes, and you or your client should contact the City and/or an attorney to ensure your LNE Permit application satisfies all requirements. While the new ordinance seems to be a step in the right direction, the City ultimately remains responsible for enforcing these changes for the betterment of the Charleston community.