ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an on-premises beer and wine permit and club sale and consumption minibottle license for 401 Graham
Circle, (f/k/a 257 E. Gibbes Road) Lake City, South Carolina. A hearing was held on
September 14, 1994. The issues considered were: (1) the applicant's eligibility to hold a
license/permit; (2) the suitability of the proposed business location; and (3) the nature of the
proposed business activity. The applications for a beer and wine permit and minibottle license are
hereby granted, with restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an on-premises beer and wine permit and club sale and consumption
minibottle license for a location at 401 Graham Circle (f/k/a 257 E. Gibbes Road), South
Carolina, having filed applications with the South Carolina Department of Revenue and Taxation
(hereinafter referred to as "DOR"), AI #98938 and AI #98939, on May 31, 1994.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) The DOR file was made a part of this record by reference by consent of the parties
and protestants.
(4) Applicant plans to manage and operate the business as a non-profit corporation and
private club with a substantial portion of the business dedicated to the preparation and service of
meals.
(5) Applicant has incorporated as a non-profit corporation, having been granted a
certificate of incorporation as Rushmoor's, Inc. on May 12, 1994, and adopting bylaws April 18,
1994.
(6) The proposed location is in an unincorporated section of Florence County, outside of
Lake City, in an area known as Graham Village.
(7) No churches, schools, or playgrounds are within 500 feet of the proposed location.
(8) Rev. Essie Gibbes, Bernice Graham, Ella Salters, and Jimmy Carr, local residents,
testified in protest to the applications, citing traffic and noise problems, the proximity of
residences, past problems with drugs and violence at the location, and the unsuitability of the
proposed business activity and location as reasons for denial of the applications.
(9) The proposed location has been owned by Applicant since approximately 1980, but
was previously operated and managed by Applicant only during the period of 1992-1993.
(10) From approximately 1990 to 1991, Danny Myers managed the club, known then as
Tony's Lounge. During Mr. Myers' management of the club, several violent incidents occurred
requiring law enforcement attention, including a fatal shooting.
(11) Danny Myers is no longer connected to the club in any way and is currently serving a
prison sentence.
(12) During the time Applicant previously operated the club himself (1992-1993), there
were no complaints from the community about noise, traffic, or unruly patrons, nor any incidents
requiring police attention.
(13) On November 8, 1993, Special A.B.C. Hearing Officer John F. Hardaway rendered
an Order granting William Hayes a beer and wine permit and business sale and consumption
license for the proposed location; however, Mr. Hayes was never licensed. The Order dated
November 8, 1993, contained the following restrictions:
1. No beverages sold pursuant to the permits shall be sold or
distributed after 12:00 midnight on any day.
2. The permittee shall take adequate security measures to
maintain appropriate traffic control and to maintain the
safety of persons and property in the parking lot and
surrounding community.
(14) The area surrounding the proposed location is a rural residential community, with
single family houses, mobile homes, and woods.
(15) No church, school, or playground is within five hundred (500') feet of the proposed
location.
(16) Applicant is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained his principal residence in South Carolina for more than one year.
(17) Applicant has not had a permit/license revoked in the last five years.
(18) Applicant is of good moral character.
(19) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1993) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1993) set forth the requirements for
a minibottle license.
(4) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1993).
(5) 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 Commission, 316 S.E.2d
705 (S.C. App. 1984).
(6) 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. 335 (1985).
(7) The proposed location is suitable and proper, in lieu of the commercial nature of the
area.
(8) Applicant meets the statutory requirements for issuance of a beer and wine permit and
minibottle license.
(9) S.C. Code Ann. § 61-3-425 (Supp. 1993) provides that prior to issuance of a license
authorized under Title 61, an applicant must provide signed statements from the Internal Revenue
Service and DOR showing the applicant does not owe any state or federal taxes, penalties, or
interest.
(10) 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to
permits, provides:
Any stipulation and/or agreement which is voluntarily entered
into by an applicant in writing for a beer and wine permit between
the applicant and the South Carolina Alcoholic Beverage Control
Commission, if accepted by the Commission, will be incorporated
into the basic requirements for the enjoyment and privilege of
obtaining and retaining the beer and wine permit and which shall
have the same effect as any and all laws and any and all other
regulations pertaining to the effective administration of beer and
wine permittees.
In the event that evidence is presented to this Commission that
any part of the stipulation or agreement is or has been knowingly
broken by the permittee will be a violation against the permit and
shall constitute sufficient grounds to suspend or revoke said beer
and wine permit.
(11) 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. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22
(1943).
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit and club
sale and consumption license applications of Carlia Rush, be granted, with the following
restrictions and conditions, upon the applicant signing a written agreement to be filed with DOR
to adhere to the stipulations set forth below:
(1) Applicant must hire armed security personnel to be present on the business premises
and patrol the club and parking lot during all hours in which the club is open for business and after
business hours until all patrons have left the premises.
(2) Loitering in the parking lot is prohibited. Persons sitting in parked vehicles or
standing in the parking lot must be ordered to immediately either leave the premises or enter the
club.
(3) After closing each night of operation, security personnel must supervise the orderly
departure of patrons from the parking lot.
(4) Possession or consumption of beer, wine, or liquor outside of the club building is
prohibited.
IT IS FURTHER ORDERED that a violation of any of the above conditions is
considered a violation against the permit/license and may result in a fine, suspension, or
revocation.
________________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 20, 1994
Columbia, South Carolina |