South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Joseph Holmes, d/b/a Prescott Inn vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Joseph Holmes, d/b/a Prescott Inn
Route 1 90A, Yemassee, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0176-CC

APPEARANCES:
For the Petitioner: Joseph Holmes, Pro Se

For the Respondent: Nicholas P. Sipe, Esquire (excused from the hearing)

For the Protestant: N.M. Polk, III, Pro Se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-310 (Supp. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a contested case hearing. The Petitioner, Joseph Holmes, d/b/a Prescott Inn, seeks an on-premises beer and wine permit for an establishment located at Route 1 90A, Yemassee, South Carolina 29945.

The South Carolina Department of Revenue (Department) filed a Motion to be Excused, stating that the Department would have granted the permit but for the protest of the application. This Motion was granted by Order dated May 15, 2001.

After timely notice to the parties and protestant, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina on July 19, 2001.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find the following by a preponderance of the evidence:

1. Petitioner, Joseph Holmes, d/b/a Prescott Inn, seeks an on-premises beer and wine permit for an establishment located at Route 1 90A, Yemassee, South Carolina.

2. Notice of the time, date, place, and subject matter of the hearing was given to all the parties in a timely manner.

3. The proposed location is currently a vacated building.

  • Petitioner intends to operate the proposed location as a night club.
  • Petitioner has made no significant investments in preparing the proposed location to

open for business. He has cut tree limbs that were hindering the view of the proposed location and secured the windows. He has planned to install outside lights at the proposed location.

  • Petitioner testified that there are no set proposed hours of operation. He stated that

he intended to operate during hours allowed by the law.

  • Petitioner lives about six miles from the proposed location.
  • Petitioner operates a towing business that is separate from the proposed location and application for an on-premise beer and wine permit.
  • Petitioner intends to employ a disc jockey to play music at the proposed location.
  • There is a convalescent home located nearby the proposed location.

11. N.M. Polk testified at the hearing as a Protestant. Mr. Polk resides at 30

Twickenham Road, Yemassee, South Carolina, and he objects to the issuance of an on-premise beer and wine permit to the proposed location. Mr. Polk lives approximately 200 yards from the proposed location, and there are several other residences located within close proximity of the proposed location.

  • Protestant feels that a night club will create an atmosphere for drugs in this

community. Also, the Protestant is worried about loitering and loud noise that may occur at the proposed location. The area is a rural residential one, and he feels this type of establishment is not needed in a residential area.

  • This location was operated in the past as a night club. The past proprietors were

family relatives of the Petitioner. Protestant resided at 30 Twickenham Road, Yemassee, South Carolina at that time as well. Protestant testified that he heard gun shots, fights, and loud cursing in the past at the proposed location. He stated that there were problems with cars spinning tires and people engaged in sexual activities in public at the proposed location when operated by the previous proprietors.

  • Petitioner had no proposal of how he would keep the activities that occurred with the

past proprietor from reoccurring once he became the proprietor, other than requesting that the sheriff's department send officers to patrol the area and placing outside lights on the building. In fact, Petitioner stated that he cannot control what activities take place outside of the building.

15. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2000) concerning the residency and age of the applicant are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction to hear and to determine this contested case pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2000) and S.C. Code Ann. § 61-2-260 (Supp. 2000).

2. S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance of an on-premise beer and wine permit.

3. Under S.C. Code Ann. § 61-4-520 (Supp. 2000), the location of the proposed place of business must be proper. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E2d 118 (1981).

4. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the Petitioner and the proposed business location for a license or permit using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5. The determination of the 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 considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

  • The proximity of the location to residences, churches, schools, and playgrounds is a

proper consideration. Indeed, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or playgrounds is a proper basis for denying a beer and wine permit. Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

  • Here, the location is within a proximity that is too close to residences in the area.

One residence is approximately 200 yards away, and there are other residences in the immediate area. Further, there is a convalescent home nearby. Considering the overall nature of the area in which the beer and wine permit would be used, the area is primarily a residential area. Such close proximity is especially unacceptable given the presence of music that will present additional noise for a location that could be open until 2:00 a.m. Petitioner did not have proposed hours of operation which means such a permit is incompatible with a residential area when the location operates into the early morning hours typically associated with the hours of sleep normal to a residential community.

9. The degree to which the area is characterized as rural is relevant. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Further, a valid consideration is whether the surrounding area is substantially commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, the area is rural with minimal commercial activity. Thus, these factors weigh against granting the permit.

  • Finally, consideration may be given to whether in the recent past beer and wine have

been sold at the same location by former owners, and whether the evidence shows that the location is now any less suitable than during the former time period. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

  • Here, the location was operated with an on-premise beer and wine permit. The

Protestant testified that there were problems with loitering, loud noise, and illegal activity.

  • I have considered all of the factors relevant to the proposed location and have given

due weight to the evidence presented at the hearing. The proposed location is within an improper proximity to residences. Further, other location factors weigh against granting the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 2000). Accordingly, Petitioner's application seeks an on-premises beer and wine permit for a location that is not a proper location.

ORDER

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

ORDERED that the application of Joseph Holmes, d/b/a Prescott Inn for an on-premise beer and wine permit be denied.

AND IT IS SO ORDERED.

________________________________ C. Dukes Scott

Administrative Law Judge



July 31, 2001

Columbia, South Carolina


 

 

 

 

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