ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
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.
EXHIBITS
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).
FINDINGS OF FACT
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.
CONCLUSIONS OF LAW
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.
RESTRICTIONS
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.
ORDER
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 |