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.
“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 |