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McMaster ordered SC nightclubs closed, but partying continues in legal gray area

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Though Gov. Henry McMaster ordered nightclubs to close, many continue to operate thanks to legal ambiguity. File

Months after Gov. Henry McMaster closed South Carolina's nightclubs to control the spread of the coronavirus, nightlife venues that promote themselves using that term continue to operate because state law doesn't say what a "nightclub" actually is. 

According to state laws and the regulators who enforce them, although the executive order singles out nightclubs, no business in the Palmetto State can be definitively categorized as such.

It's a loophole big enough to sneak a procession of sashaying bottle-service waitresses through, sparklers and all.

"Right now, with nightclubs being closed, an owner could easily just say they (ran) a bar or restaurant and choose to open," Brook Bristow, a West Ashley attorney specializing in beverage law, told The Post and Courier.

The term "nightclub" appears just twice in South Carolina's Code of Laws, and neither instance defines the business. 

Because of that, Bristow said, individual establishments that brand themselves as nightclubs and boast all the oontz-oontz elements (DJ booths, pricey magnums marched to the table and the like) have a lot of latitude to keep the party going — even while featuring the term prominently in their advertising materials.

In mid-May, immediately following the state’s reopening, Trio — which advertises itself on its website as "Charleston’s premier multi-level nightclub" — drew public criticism and scrutiny from city officials for videos on social media that depicted patrons apparently disregarding social distancing. It quickly closed with a promise to reopen when safe.

Since then, many of these nightlife businesses in the Charleston area have reopened, including Trio. On social media and websites, they continue to promote themselves as "nightclubs," replete with VIP tables, bottle service, and, in recognition of COVID-19, safety and sanitation practices. 

What about licenses? Department of Revenue spokeswoman Bonnie Swingle said the agency’s Alcoholic Beverage Licensing arm issues no special license designating the holder as a nightclub. Those businesses, she said, could operate under a few different ABL licenses.

"Most nightclubs will carry the exact same (alcohol) licensing as any bar or restaurant would," Bristow said.

Popular nightlife spots, including Deco, Mynt and Trio, hold "business liquor by the drink" licenses, which allow the service of full-proof booze so long as the operation is "primarily engaged in the preparation and serving of meals." Other businesses, like Faculty Lounge and Mr. B's, are licensed as "non-profit (private club) liquor by the drink" establishments, which allows them to pour liquor without serving food. 

But neither categorization confers ironclad nightclub status upon a business.

"To my knowledge, neither the courts nor the general assembly have defined ‘nightclub,' " Swingle said.

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A spokesperson for the governor did not respond to a request for clarification on McMaster’s intended definition of the term.

Without a clear definition of what a South Carolina nightclub is, there's no way to say how many there are — or how effective the governor's order to close them has been.  

The S.C. Secretary of State’s website lists 37 businesses with either “nightclub” or “night club” in their legal names. Still, as the DOR’s Swingle pointed out, that keyword search would omit nightclubs that don’t include the term in their names.

Bristow, added that local ordinances may more clearly define nightclubs than the state rules do. 

Not in Charleston County, though: A county spokesperson confirmed the jurisdiction has no specific definition of a nightclub.

City of Charleston spokesman Jack O'Toole was unsure whether the city had any particular zoning or permitting restrictions that would demarcate a business as a nightclub. 

At the state level, it's up to the State Law Enforcement Division to determine whether a business is flouting the nightclub order.

A spokesperson for SLED did not respond to a request for clarification on the criteria agents were using to identify nightclubs.

Some say the gray area creates problems for both would-be partiers and those sent to police them.

“We believe some clarification on the meaning of ‘nightclub’ will be helpful to both licensees and enforcement agents,” said Ken Allen, a Columbia attorney and member of the National Association of Alcoholic Beverage Licensing Attorneys.

Allen is representing a North Myrtle Beach business disputing the DOR’s temporary suspension of its beer, wine and liquor license. The suspension was spurred by a SLED violation report, issued on July 4, for the "violation of the governor’s executive order — operating as a nightclub."

The report did not spell out the operations that had drawn SLED's attention in the first place. But advertising certainly played a part: attached to the report was a screenshot from the business' Instagram page promoting it as "North Myrtle Beach's Best Rooftop Nightclub." 

Reach Dave Infante at 843-937-5320. Follow him on Twitter @dinfontay.

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