South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Carlia Rush, d/b/a Rushmoor's, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Carlia Rush, d/b/a Rushmoor's, Inc.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0212-CC

APPEARANCES:
E. Leroy Nettles, Jr., Attorney for Applicant

Rev. Essie Gibbes (pro se), Spokesperson for Protestants
 

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


 

 

 

 

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