The Late Night Entertainment Establishment Ordinance puts up a few red flags for future legal challenges and lawsuits. We asked city Assistant Corporation Counsel Frances Cantwell to clear up some of the ambiguities in the law, and she gave some reassuring answers — but those are just her interpretations. The ordinance itself is vaguely worded, and there's no guarantee on how it will be enforced.
Cantwell says the city has no intention of overburdening bar owners. "It's not an effort to squelch anything or to be onerous," she says. "It was just to bring all the stakeholders to the table so that everybody shares in the responsibility." Cantwell says that if residents have a problem with the ordinance, they can always ask City Council to either modify or repeal it. If they want to challenge the legality of the ordinance, they'll have to take it to court.
Let's take a look at a few sections of the ordinance:
17-126-B.1: "For purposes of subsection B.1., the Late Night Entertainment Establishment may designate as a door person or a security person or persons someone employed in another capacity by the Establishment whose job responsibilities for the business in such capacity ends before midnight."
So... What happens when a manager hires a 'roid-raging meathead?
Subsection B.1 is the part of the new ordinances that lays out the new private security requirements for bars, and they're all based on maximum occupant load (MOL) as determined by the fire code. Bars with an MOL of 100 or less need to have one door person and one security person after midnight. For 101 to 200 MOL, they need one door person and two security persons; for 201 to 300 MOL, they need one door person and three security persons, and so on.
The thing is, there are no requirements for certification or training of "security persons." One of the them can be a manager, and the others can be anyone, really. Attorney David Aylor says that in his experience, private guards in Charleston take a few different forms: off-duty cops, employees of private security firms, individuals who have earned a certification from the S.C. Law Enforcement Division, and plain old guys with big muscles. "The problem is when you've got security that one minute are trying to get a girl's phone number or joking with their buddies, and then the next minute slamming a guy against a wall because he stepped on somebody's foot," Aylor says. "The problem with security is inconsistency with who the security may be and where the security is."
17-126-B.5: "It shall be the responsibility of Late Night Entertainment Establishment personnel to routinely monitor all on-site and off-site areas used for parking by the Late Night Entertainment Establishment or its patrons to prevent such areas from becoming outdoor gathering places."
Do Upper King Street bars have to monitor the Visitor Center parking garage now?
The way the ordinance reads, private security guards are being told to "monitor" public areas and even private lots operated by parking companies. But Cantwell says that's not the intent and clarifies that this section of the ordinance only applies to parking lots owned or leased by the bar owners. The ordinance doesn't make that distinction, though.
Cantwell also says the city was careful with its wording. The original version of the ordinance required personnel to "patrol" parking areas, but the final version reads "monitor." "When you monitor something, you're just keeping an eye out on it," Cantwell says. Asked if installing security cameras would constitute "monitoring," Cantwell says it "would be an option."
Aylor says the requirement to keep an eye on parking lots raises questions of liability. "If something does occur like, let's say, vandalism or a car is broken into, is that then going to come back ... as far as violation of that ordinance for the bar or restaurant?" Aylor asks. Only time will tell.
17-126-B.5: "It shall be the responsibility of Late Night Entertainment Establishment personnel to clear all on and off-site areas used for parking of patrons within thirty minutes of closing."
So... What if patrons don't want to leave?
Private security officers have limited authority. When you're in the parking lot — or on the sidewalk for that matter, as addressed in another part of the ordinance — why should you listen to what a private security officer has to say?
During the public comment session at last week's City Council meeting, Chris "Boston" DiMattia, owner of the Rec Room, showed up to voice his concerns about the ordinance. "The times we've had to call the cops on people, it's because they don't listen to us," said DiMattia, who also said his bar had never been the site of a noise violation or underage drinking violation. "When we're up front, we don't mind putting extra security on, but if a kid's walking across the street screaming and yelling, all I can do is say, 'Hey, don't do that. Stop that.' We're not officers. We're not paid to be officers."
But Cantwell says the ordinance isn't "asking the private sector to undertake police work." If patrons are uncooperative at closing time, she says the security officers should call police for help. "If a bar owner makes the effort to clear his parking lot to make sure it doesn't turn into an outdoor party and he's not getting cooperation from his guests, then I think he's done all we can ask him to do," Cantwell says.
17-126-B.8: "The provisions of this subsection shall only be applicable on Thursdays, Fridays, and Saturdays, the holidays of New Year's Eve, St. Patrick's Day, Memorial Day, Fourth of July, Labor Day, and Halloween, and during special concerts or promotions that take place at the Late Night Entertainment Establishment."
So... What makes a concert or promotion "special"?
Cantwell says promotions like Ladies' Night and musical events that are "a normal part of your operation" don't fall under the "special" category. "Certainly playing music or having the group that comes in every week and sings or whatever they do, that's not what we're intending," Cantwell says. But once again, none of this is codified in the ordinance.
Also, we hate to nitpick, but since the security provisions kick in at midnight, isn't this ordinance saying that bars have to increase their security at 12 a.m. the morning of St. Patrick's Day, but not at 12 a.m. the night of St. Patrick's Day? Just sayin'.