SC Administrative Law Court Decisions

This matter comes before me for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2000). Epithany, Inc., d/b/a Zoe's (Petitioner), filed an application for an on-premise beer and wine permit and a sale and consumption license (mini-bottle license) for the premises located at 1312 Cedar Lane Road, Greenville County, South Carolina (location). The application was protested by Willis Roy Davis, Jr. (Protestant) based upon the suitability of the location. The South Carolina Department of Revenue (Department) found that the Petitioner met all the statutory requirements. Also appearing at the hearing and objecting to the granting of the permit and license were: Sen. Michael L. Fair, Rep. Dwight Loftis, Greenville County Councilman Bryon Marquis Charles Kingsbury, and Marcus Alton Cannon with the Greenville County Sheriff's Office.

A contested case hearing was held on Wednesday, June 13, 2001, at the offices of the Administrative Law Judge Division (Division), Columbia, South Carolina. The issue considered was the suitability of the proposed location.

Appearing at the hearing and offering testimony was Pamela Wu, owner and president of Petitioner, as well as Robert K. Finley, the proposed manager of the proposed location and business. Testifying in opposition to the granting of the permit and license were: Sen. Michael Fair, Rep. Dwight Loftis, Greenville County Councilman Bryon Marquis Charles Kingsbury, Marcus Alton Cannon of the Greenville County Sheriff's Office, and the protestant, Willis Roy Davis, Jr.

The application requests are granted with restrictions, as agreed to by Petitioner, the Protestant and the others who objected to the permit and license.

Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of the record. The following exhibits were placed into the record at the hearing:

• By Petitioner: exhibits 1-9 (photographs), 10 (DHEC Inspection Report), 11 (Menu), and 12 (Certificate of Occupancy from Greenville County Buildings Standards Division).
• By Protestant/Davis: exhibits 1-12 (photographs), exhibit 13 (newspaper article), exhibit 14 (map), and exhibit 15 (location drawing).
• By Greenville County Sheriff's Office: exhibit 1 (numerous incident reports).

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and the Protestant, I make the following Findings of Fact by a preponderance of the evidence:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and subject matter of the hearing was timely given to the Petitioner and the Protestant.

3. The Petitioner seeks an on-premise beer and wine permit and a mini-bottle liquor license for a jazz club/restaurant to be known as "Zoe's," located at 1312 Cedar Lane Road, Greenville County, South Carolina. The permit is to be issued in the name of Pamela Wu, owner and president of Petitioner.

4. Ms. Wu was born on November 4, 1972 and is over the age of twenty-one (21) years.

She has lived in Greenville County, South Carolina since May 1998. She is a resident and citizen of Greenville County.

5. Ms. Wu has never been arrested and is of good moral character. She has never had a beer and wine permit, liquor license, or sale and consumption license revoked.

6. Notice of this application has appeared at least once a week for three (3) consecutive weeks in The Greenville News, a newspaper of general circulation in the local area where the Petitioners operates his business.

7. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the location.

8. There are no churches, schools or playgrounds within five hundred (500) feet of the proposed location.

9. The location is in a strip shopping center in Greenville, outside the city limits of Greenville, South Carolina. There are numerous residences to the rear of the location, all within a subdivision called Westwood Terrace.

10. In front of the location is a large parking lot which should be sufficient to accommodate the vehicles of patrons at the location.

11. Ms. Wu will be responsible for the business. However, her manager, Robert K. Finley, will be present each day it is open and will handle the daily operations.

12. Petitioner intends to serve food to its customers as shown on its menu. Pet. Exh.11. DHEC has issued Petitioner a Class A restaurant permit for the location. Pet. Exh. 10. The restaurant will have seating for 140 persons.

14. The restaurant will not be open on Sundays, Mondays, Tuesdays, or Wednesdays. Ms. Wu intends to open the club between the hours of 7:00 p.m. and 2:00 a.m. on Thursdays and Fridays and between the hours of 7:00 p.m. and midnight on Saturdays.

15. Petitioner will feature only jazz music at the location. No large bands will be featured at the club, and the only sound equipment will be located within the building so that no loud music will emanate from the location.

16. The front portion at the location will house dining tables, the kitchen and bathrooms. The rear portion will house pool tables and one jukebox.

17. Petitioner has installed soundproofing material (styrofoam) on the inside or the rear wall, and has installed a wall some 8 1/8 inches thick some 17 feet from the rear wall. This wall has several layers of sheet rock and has R-30 insulation in the wall. The wall extends through the ceiling to the roof. Petitioner made these improvements to ensure that no sound or noise from the club will be heard at the homes of adjoining residents and prevent them from enjoying the quiet and full enjoyment of their homes.

18. The objections of the protestant and the others were based on loud noise and the need to provide for the public safety of citizens close by and to provide to them an excellent quality of life.

19. Just prior to the conclusion of the presentment of the case and during the testimony of the Protestant, the parties requested leave of the court to discuss potential settlement. After discussion, the Petitioner and the Protestant, together with the other witnesses who testified in opposition to the issuance of the permit and license, agreed to a settlement as follows:

A. That the permit and license will be issued to Ms. Wu;

B. The Petitioner and Ms. Wu will enter into an agreement with the Department of Revenue to have the following restrictions on the permit and license: the location will operate solely as a jazz club (not more than a 2-4 piece band); no loud or heavy bass sounds will emanate from the location which can heard by any of the residents living in Westwood Terrace subdivision; an off-duty police officer will be retained by Petitioner to patrol the parking area in front of the location to ensure loitering does not take place and to prevent alcohol usage there; and the exterior premises at the location, both in front and at the rear, will be kept clean with all trash being picked up nightly.

Further, they agreed that if any violation of these conditions occur, Mr. Willis will be the spokesperson for the residents and will immediately notify either Ms. Wu or her attorney both by telephone or in person and follow such up immediately in writing.

20. Having listened to the testimony, the court finds that the agreement as hereinabove stated, is fair and reasonable and the permit and license should be issued by Respondent with the restrictions and conditions made a part of the permit and license. This agreement, if adhered to by the Petitioner, should provide for the neighbors to live in peace and quiet and have the full and peaceful use and enjoyment of their homes. Any violation not immediately corrected would allow for a revocation of the permit and license.

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

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, as regulated by the State.

3. S.C. Code Ann. § 61-4-520 (Supp. 1999), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

1) The applicant, any partner of co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.

2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4) The applicant, within two years before the date of application, has not had revoked a beer or wine permit issued to him.

5) The applicant is twenty-one years of age or older.

6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.

8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section . An applicant for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2000), which sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license, provides as follows:

The Department may issue a license under subarticle 1 of this article upon finding:

1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.

2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace and good order in its community, and its principals are of good moral character.

3) As to business establishments or locations established after November 7, 1962, § 61-6-120 has been complied with.

4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.

5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of license sought;

(b) tell an interested person where to protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

6) The applicant is twenty-one years of age or older.

7) The applicant is a legal resident of the United States, has been a resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in this State for at least thirty days before the date of application.

8) The applicant has not been convicted of a felony within ten years of the date of application.

5. S.C. Code Ann. § 61-6-120 (Supp. 2000) provides that a liquor license shall not be issued if the place of business to be licensed is located within three hundred feet of any church, school, or playground situated within a municipality, or within five hundred feet of any church, school, or playground situated outside of a municipality. No churches, schools, or playgrounds are located within the prescribed proximity to render the proposed location unsuitable based on this distance requirement.

6. A license for the sale and consumption of alcoholic beverages must not be granted unless the location will be operated as either a bona fide nonprofit organization or a bona fide business engaged primarily and substantially in food preparation and service or the furnishing of lodging. Petitioner intends to operate the business as a restaurant and bar.

7. S.C. Code Ann. § 61-6-20 (2) and (4) (Supp. 2000), which define a bona fide business engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, read in part as follows:

As used in the ABC Act, unless the context clearly requires otherwise:

(2) "Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

. . . .

(4) "Furnishing lodging" means those businesses which rent accommodations for lodging to the public on a regular basis consisting of not less than twenty rooms.

Petitioner holds a Class A restaurant license and has facilities for seating 140 persons. Accordingly, Petitioner is a bona fide business engaged primarily and substantially in the preparation and serving of meals.

8. A license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 2000) if: (1) the applicant is not a suitable person to be licensed; (2) the store or place of business to be occupied by the applicant is not a suitable place; or (3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated municipality, or other community.

9. Petitioner has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 (Supp. 2000), concerning her residency and age, as well as the publication and notice requirements.

10. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the

fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

11. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

12. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). An applicant seeking a permit or license at a location that has been previously permitted and/or licensed, must still meet the statutory requirements and the location must be found to be suitable.

13. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

14. In this case, the Petitioner has agreed that restrictions should be placed on the permit and license. As stated above, I conclude that the agreement is fair and reasonable.

15. A violation of any of the restrictions or of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the permit pursuant to S.C. Code Ann. §§ 61-4-580 and 61-6-1830 (Supp. 2000).

16. S.C. Code Ann. § 61-2-160 (Supp. 2000) prohibits the issuance, renewal or transfer of a permit or license under Title 61 if the applicant owes state or federal government delinquent taxes, penalties or interest. The court concludes that none is owed.

17. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption license at the location. I further conclude that the proposed location is a proper one for granting the permit, subject to the following restrictions which must be stipulated to.

1. The location will operate solely as a jazz club and will feature not more than a 2-4 piece band.

2. No loud or heavy bass sounds will emanate from the location which can heard by any of the residents living in Westwood Terrace subdivision.

3. An off-duty police officer will be retained by Petitioner to patrol the parking area in front of the location to ensure loitering does not take place and to prevent alcohol usage there.

4. The exterior premises at the location, both in front and at the rear, will be kept clean with all trash being picked up nightly.

5. No club activities will be permitted in the parking lot area or outside the location.

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

ORDERED that the Petitioner's application for an on-premise beer and wine permit and a sale and consumption license for the location at 1312 Cedar Lane Road, Greenville, South Carolina, is granted upon payment of all fees, and it is further

ORDERED that the permit and license shall only be issued by the Department upon the Petitioner signing a written statement to be filed with the Department to adhere to the restrictions set forth above; and it is further

ORDERED that a violation of any of the above restrictions will be considered a violation against the permit and license and may result in a fine, suspension, or revocation of the permit and license.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

June 20, 2001

Columbia, South Carolina