South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Joe Johnson, Jr., d/b/a G & G Restaurant & Lounge vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Joe Johnson, Jr., d/b/a G & G Restaurant & Lounge
2360 Mount Olive Road, Loris, South Carolina

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0138-CC

APPEARANCES:
Joe Johnson, Jr.
Petitioner, pro se

Dana Krajack, Esquire
For Respondent

Isaac Harris, Jr.
Andrew L. Sarvis
Protestants, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) on the application of Petitioner Joe Johnson, Jr., for an on-premises beer and wine permit and a restaurant minibottle license for a restaurant and lounge located at 2360 Mount Olive Road in Loris, South Carolina. On January 16, 2003, the South Carolina Department of Revenue (Department) denied Petitioner’s application because of the protests filed by two neighboring residents, Mr. Isaac Harris, Jr., and Mr. Andrew L. Sarvis, concerning the suitability of the proposed location, and because Petitioner had not yet satisfied the requirements of S.C. Code Ann. § 61-6-1820(1) (Supp. 2002) and 23 S.C. Code Ann. Regs. 7-19 (Supp. 2002), in that Petitioner had not obtained a Grade A Health License for the premises and did not have any food at the location.

After timely notice to the parties and the protestants, a hearing of this matter was held on May 22, 2003, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location, I find that Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license must be denied.

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1.On October 21, 2002, Petitioner Joe Johnson, Jr., submitted an application to the Department for an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 2360 Mount Olive Road, Loris, South Carolina. This application is hereby incorporated into the record by reference.

2.Petitioner is over twenty-one years of age, is a citizen of the United States, and has resided and maintained his principal place of abode in South Carolina for at least thirty days prior to making his application for the beer and wine permit and minibottle license.

3.Petitioner has not had a permit to sell beer and wine or a license to sell alcoholic liquors suspended or revoked within the five years preceding the filing of his application.

4.The South Carolina Law Enforcement Division (SLED) completed a criminal background investigation of Petitioner that did not reveal any criminal violations, and the record does not indicate that Petitioner has engaged in acts or conduct implying the absence of good moral character.

5.Notice of Petitioner’s application was published in The Loris Scene, a newspaper published and circulated in Horry County, South Carolina, for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

6.The proposed location is situated in the midst of several residences in a rural area of Horry County, South Carolina. The nearest residence is within two hundred feet of the proposed location, and approximately twelve other residences lie within the general vicinity of the location. There are no churches, schools, or playgrounds within close proximity to the proposed location.

7.The location is not currently open for business. However, prior to its recent closure, the proposed location had been operated as a social club under various proprietors since the late 1970s. Further, the location was licensed with an on-premises beer and wine permit and a minibottle license between 1991 and May 2001.

8.Petitioner leases the proposed location from Esther G. Goff, and plans to operate the location primarily as a social lounge. Petitioner gave no indication that he intends to operate his lounge in a manner different from previous establishments at the location.

9.Protestant Isaac Harris, Jr., testified at the hearing to the adverse impact recent establishments at the location have had on the surrounding community. In particular, Mr. Harris described the disturbances caused by patrons of those establishments ranging from nuisances such as excessive noise from cars and music, illegal parking on neighboring properties, littering in neighboring yards, and public urination to criminal activities such as illegal drug activities, fights, thefts, and shootings. These activities have necessitated frequent calls to local law enforcement. Mr. Harris further testified that he had been involved in the operation of a social club at the location during 1999, but that, because of their inability to control the sort of criminal activities and other disturbances noted above, he and his partners transferred their interest in the establishment and left the business after operating the location for only a year. Mr. Harris currently resides approximately 250 feet from the proposed location.

10.Protestant Andrew L. Sarvis, who resides next door to Mr. Harris, also testified regarding the disturbances previous operations at the proposed location have caused the neighboring residents. Like Mr. Harris, Mr. Sarvis described noise problems, littering, illegal parking, thefts, and shootings stemming from activities at the proposed location during its prior period of operation.

11.Because of the proximity of the location to a residential community and its recent history of being operated in a manner adverse to the welfare of the local residents, I find that the proposed location is unsuitable for the issuance of a beer and wine permit and a minibottle license.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1.Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002).

2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3.S.C. Code Ann. § 61-4-520 (Supp. 2002) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7).

4.S.C. Code Ann. § 61-6-1820 (Supp. 2002) sets forth the criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981). Further, S.C. Code Ann. § 61-6-20(2) (Supp. 2002) and 23 S.C. Code Ann. Regs. 7-19 (Supp. 2002) prescribe additional parameters and details for implementing the statutory requirements for a restaurant before the issuance of a minibottle license to the establishment.

5.Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

6.The determination of suitability of location is not necessarily a function solely of geography. Rather, it involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7.In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

8.“[A] liquor license or permit may be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).

9.The denial of a license to sell alcoholic beverages is appropriate where the proximity of the proposed outlet to areas of public congregation would aggravate problems related to the consumption of alcohol in public. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding the denial of a retail beer and wine permit where the applicant’s property was already the site of congregations of people attended by some consumption of alcohol and disorder). Such denial is particularly appropriate when the public areas surrounding the proposed location have been the source of constant law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975) (upholding the denial of a retail beer and wine permit upon evidence that local law enforcement had constant problems with public intoxication in the vicinity of the applicant’s store).

10.In considering the nature of Petitioner’s proposed lounge and its proximity to a residential community, I find the proposed location unsuitable for Petitioner to operate a nightclub with a beer and wine permit and a minibottle license. There are inherent consequences from the operation of a nightclub that are not conducive to the harmonious coexistence of such an establishment with a surrounding residential community. The residents of the community surrounding the proposed location are entitled to be free of the kinds of noise disturbances, parking and traffic problems, criminal activity, and other nuisances that are associated with the operation of such lounges generally and that have been associated with prior establishments at this particular location. Footnote “The right of a person to use his own property does not entitle him to violate the peace and comfort of others in the vicinity.” 3 S.C. Juris. Breach of Peace § 7 (1991). In the case at hand, the manner in which prior establishments at the proposed location have been operated over the past decade has violated the peace and comfort of nearby residents, and the record is devoid of any evidence to suggest that the operation of Petitioner’s lounge will not create similar problems in the neighboring community. Therefore, the proposed location is unsuitable for the continued sale of beer, wine, and liquor for on-premises consumption.

11.This tribunal is respectful of the fact that Petitioner has expended time and resources in securing the permit in question. Nevertheless, there was a sufficient evidentiary showing in the present case that the proposed location is unsuitable for Petitioner’s intended operations and that the issuance of the requested beer and wine permit and minibottle license would have an adverse impact on the community. See Kearney, 287 S.C. at 327, 338 S.E.2d 337 (upholding the denial of a beer and wine permit and minibottle license to a country-western music lounge with hours of operation similar to Petitioner’s because of the impact of the lounge “upon [a local] School, upon the residential character of the surrounding area and upon the traffic congestion potential”).

12.As the trier of fact, the issuance or denial of a permit or license rests within the sound discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit and license in the instant case is compelled because the issuance of the requested permit and license would be detrimental to the inhabitants of the community surrounding Petitioner’s establishment.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 2360 Mount Olive Road, Loris, South Carolina, is DENIED.

AND IT IS SO ORDERED.


______________________________

JOHN D. GEATHERS

Administrative Law Judge

June 12, 2003

Columbia, South Carolina


 

 

 

 

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