SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) on the application of Santee Entertainment, Inc. for an on-premises beer and wine permit and minibottle license for a restaurant and adult entertainment club to be located at 9135 Old Highway #6, Orangeburg, South Carolina. After notice to the parties, a hearing was conducted on March 23, 2000. Based upon the evidence presented regarding the suitability of the location, this tribunal finds the nature of the area in which the restaurant is to be located suitable for a beer and wine permit and minibottle license. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

STIPULATIONS

At the hearing of this matter, counsel stipulated in open court that the only issue before this tribunal was whether the location was suitable for a beer and wine permit and minibottle license. Counsel for Petitioner further stipulated that his client does not currently satisfy the statutory criteria concerning the conduct of a business engaged primarily and substantially in the preparation and serving of meals. Counsel for Respondent stipulated that but for the protests, the Respondent would have granted the beer and wine permit and minibottle license, upon Petitioner's satisfaction of the statutory criteria relative to the service of meals.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, 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 August 23, 1999, John B. Casey, on behalf of Petitioner, submitted an application for an on-premises beer and wine permit and a bona fide restaurant minibottle license with the South Carolina Department of Revenue for the premises located at 9135 Old Highway #6, Orangeburg, South Carolina. One area of the business would consist of a restaurant (Shooters), and the second area would consist of adult entertainment (Spinners). Petitioner's application is incorporated into the record by reference.

2. Petitioner leases the proposed location from Ed Martin.

3. Mr. Casey, along with his wife, has been operating another restaurant in Orangeburg that has a beer and wine permit and minibottle license without being cited for a violation.

4. Petitioner has no criminal convictions and is a person of good moral character.

5. Petitioner is a legal resident of the United States.

6. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before applying for a permit and minibottle license.

7. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has never had any permit to sell beer and wine or alcoholic liquors suspended or revoked.

8. Petitioner is over twenty-one years of age.

9. Notice of application for the beer and wine permit and minibottle license was published in The Holly Hill Observer on October 20 through November 3, 1999. Notice was also posted at the proposed location for the time-period required.

10. Richard Incontro (President of Santee Cooper Residents Association), Max Spray (The Tri-County Regional Chamber of Commerce) and Joanie Wright (Santee Development Office) filed protests to Petitioner's application on the ground that the proposed location is unsuitable.

11. Raymond Seabaugh testified on behalf of the Santee Cooper Residents Association, which consists of approximately 300 families, that the adult entertainment will create a disturbance in the community.

12. George Snyder, a resident at the Santee Cooper Resort, testified that the adult entertainment will create noise at levels that violate city ordinances, but that the city ordinances would not apply since the establishment is outside the boundaries of the city. Mr. Snyder further testified that the adult entertainment would increase traffic and decrease property values. Mr. Snyder also testified that the adult entertainment would cause a reduction in property values in proximity to the proposed location.

13. Julia Katherine Yawn testified that she lives in the Santee Cooper Resort with her children and that she does not want her children to be exposed to the adult entertainment environment and the associated elements in the parking lot.

14. But for the protests, the Department would have issued the beer and wine permit and minibottle license, upon Petitioner's satisfaction of all statutory criteria.

15. The proposed location is in a strictly commercial area in proximity to Interstate 95 and Highways 6, 15 and 301.

16. There are no churches, schools, or playgrounds within close proximity to the proposed location.

17. There are numerous restaurants and hotels/motels in proximity to the proposed location.

18. Pursuant to 23 S.C. Code Ann. Regs. 7-88 (1976), Petitioner has agreed that the following conditions shall attach to the permit and license at issue:

a. The business shall close at 2:00 a.m. on Monday thru Friday and at 12:00 a.m. on

Saturday. The business shall be closed on Sunday.

b. The property on the exterior of the business shall remain tasteful, there shall be no

advertisements for any adult entertainment on the property on the exterior of the

business, and any signs on the property on the exterior of the business shall be

tasteful, as evidenced in Petitioner's Exhibit 1.

c. In connection with the minibottle license, in the event that there are two convictions

for violations of noise ordinances of Orangeburg associated with the business in any

two-year period, the minibottle license shall be revoked.

CONCLUSIONS OF LAW

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

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998), S.C. Code Ann. § 1-23-600(B) (Supp. 1998) and S.C. Code Ann. § 1-23-310 (Supp. 1998).

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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. S.C. Code Ann. § 61-6-1820 (Supp. 1998) establishes the criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in this statute as a condition of licensing, such a consideration is proper. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. The determination of suitability of a location is not necessarily a function solely of geography. 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. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

7. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may find the location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

8. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Court. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Court. App. 1984).

9. I find the location to be suitable for the issuance of a beer and wine permit and a minibottle license due to the commercial nature and array of businesses in the area in which it is to be situated.

10. Mr. Seabaugh and Mr. Snyder conceded that each would not protest the application by Petitioner if there were no adult entertainment at the business. In requesting this tribunal to deny Petitioner's application based on the presence of adult entertainment at the business, the protestants are in essence asking this tribunal to effectuate zoning, the ultimate purpose of which is to confine certain classes of buildings and uses to certain localities. 101A C.J.S. Zoning and Land Planning § 101 at 366 (1979). Such authority is vested solely in protestants' local government.

11. Nonetheless, Petitioner agreed to certain restrictions which will likely alleviate some of the concerns raised by the protestants. These restrictions are as follows:

a. The business shall close at 2:00 a.m. on Monday thru Friday and at 12:00 a.m. on

Saturday. The business shall be closed on Sunday.

b. The property on the exterior of the business shall remain tasteful, there shall be no

advertisements for any adult entertainment on the property on the exterior of the

business, and any signs on the property on the exterior of the business shall be

tasteful, as evidenced in Petitioner's Exhibit 1.

c. In connection with the minibottle license, in the event that there are two convictions

for violations of noise ordinances of Orangeburg associated with the business in any

two-year period, the minibottle license shall be revoked.

As a result, Petitioner is subject to compliance with these restrictions for continued licensure.

12. Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit. See 23 S.C. Code Ann. Regs. 7-19(A) (1976). The Department shall issue an on-premises beer and wine permit to Petitioner and shall continue to process Petitioner's application for a minibottle license.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the Department shall issue to Petitioner an on-premises beer and wine permit for the aforementioned location and shall continue to process Petitioner's application for a minibottle license.

AND IT IS SO ORDERED.

___________________________

JOHN D. GEATHERS

Administrative Law Judge

April 4, 2000

Columbia, South Carolina.