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:
Robert D. Rice d/b/a Poverty Flats vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Robert D. Rice d/b/a Poverty Flats

Respondents:
South Carolina Department of Revenue

Protestors:
Union County Sheriff's Department and Dianne and Vernal Stephenson
 
DOCKET NUMBER:
94-ALJ-17-0280-CC

APPEARANCES:
Kenneth Allen, Esquire for Applicant

Captain David F. Baldwin for Union County Sheriff's Department

Dianne and Vernal Stephenson, Pro Se
 

ORDERS:

ORDER AND DECISION

This matter comes before me on the application of Robert D. Rice for an on-premises beer and wine permit and a private club sale and consumption license for Poverty Flats located at 1572 Furman Finley Highway 176 North, Union, South Carolina. After notice to the parties, a hearing was held on November 7, 1994. At the hearing numerous protestors appeared. The Union County Sheriff's Department and residents Dianne and Vernal Stephenson requested to intervene as party-protestors. Without objection they were added as parties. Based upon the testimony and evidence presented, I make the following:

FINDINGS OF FACT

1. Robert D. Rice is a legal resident of the United States and of South Carolina who is over the age of twenty-one (21). He has been a resident of the state all of his life.

2. He has had numerous arrests and convictions relating to speeding, a conviction for violation of the state gun law in 1988, and a conviction for tampering with an electric meter in 1981. Since the 1988 conviction, the only incidents have been for speeding. Rice admits that he was arrested for violating the local noise ordinance which he plans to challenge on constitutional grounds.

3. Rice held licenses to operate this private club at another location for approximately eleven years. The property he leased was sold and the lease was not renewed in March 1994. The licenses he held have not been suspended or revoked and are still valid.

4. Notice of the application was published in The Union Daily Times and posted at the proposed location for the required time period.

5. The proposed location is not near any schools, churches or playgrounds.

6. Poverty Flats is located in Union County on Highway 176 toward Spartanburg. The building has approximately 4380 square feet of space enclosed with rest rooms inside. The building is situated on 38 acres of real estate which is fenced on three sides. The outside areas will be used for softball games, cookouts, and other recreational activities. Future plans include the construction of a jogging trail and tennis courts.

7. The applicant hires security guards to patrol the area during the hours of operation. The club will be open from 4:00 p.m. to 3:30 a.m. The number of days the club will be open has not yet been established.

8. Several complaints have been lodged against the operation of the club. They fall into two categories: noise and interfering with industrial development of the area. Several witnesses including the party-protestors are mainly concerned with the noise level of the entertainment at the club. The sheriff has received numerous complaints about the noise including 22 calls on one night. Most of the calls occurred after 1:00 a.m. After several trips to the location about the noise, the applicant was arrested for violating the local noise ordinance. Dianne and Vernal Stephenson, owners of the mobile home park located behind the property, have received numerous complaints from the residents of the mobile home park about the noise and have initiated several calls to the sheriff. The mobile home park is located at the back edge of the 38 acres several football field lengths from the building. The minister of the Fairforest Baptist Church appeared on behalf of members of his congregation to complain about the noise and the increase in the disruption of a quiet neighborhood. Even the security guard for Poverty Flats testified that the building is not insulated and that the music could be heard outside the building even when turned down. No other police action has been taken at this location other than responding to the complaints of noise.

9. The remaining protestors are county officials or members of the Union County Chamber of Commerce and the Development Board. Their complaint is that the location of this club is approximately 100 yards from a proposed industrial park and historically developers are not encouraged by the existence of a nightclub or bar in the area. Over the next five years, zoning ordinances will be enacted in this area and it is anticipated there will be industrial development. The highway will be improved, a golf driving range will be built, and the county is actively seeking businesses to develop this area. The county was aware of the plans by the applicant to purchase this property which was formerly a salvage yard. The county fears that the location of this business will hurt the development of the industrial park which has received over 2.5 million dollars for development.

10. James Norman, an officer and employee for the club, has been convicted of obstruction of justice with respect to an investigation conducted at Poverty Flats in 1985 by failing to allow officers to gain entrance into the club after a disturbance occurred. In 1984 and 1985 he received three convictions for simple assault. In 1991 he was convicted of criminal domestic violence. Mr. Norman works in the club and serves as its Vice President. He has been affiliated with the club for eleven years.

CONCLUSIONS OF LAW

1. The Administrative Law Judge Division is vested with the powers, duties and responsibilities exercised by the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1993).

2. S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the statutory requirements for the issuance of beer and wine permits. It states:

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

(1) The applicant, any partner or 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 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 South Carolina for at least thirty days before the date of applicant.

(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 this principal place of abode in South Carolina 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 applicant, has not had revoked a beer or a 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. 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 its effective date.

(7) 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 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. Applicants for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.

(8) 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) 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 department.

3. There is no single criterion or standard for determining the meaning of the term "good moral character" and the licensing authority must judge whether the acts and conduct shown are sufficient in themselves or as an index to character to disqualify an applicant. 2709 Op. Att'y Gen. 160 (1969); 48 C.J.S. Intoxicating Liquors § 135(b) at 243. A liquor license may be refused a person who has been convicted of a crime or crimes, particularly a violation of the liquor laws. Wall v. S.C. ABC Commission, 269 S.C.13, 235 S.E.2d 806 (S.C. 1977). The Division would not be justified in refusing a license based simply upon a "moral appraisal", or because the previous misconduct is not relevant to the conduct of the business for which the license is sought. 2709 Op. Att'y Gen. 160 (1969).

The crimes committed by the applicant and by the vice president of the club are not considered crimes of "moral turpitude" which may be considered to characterize the moral fiber of a person. Pointing a firearm or possessing a pistol have been held not to involve moral turpitude so as to be used for impeachment of a witness. See Op. Atty. Gen. 2-12-91; State v. Spinks, 260 S.C. 404, 196 S.E.2d 313 (1973). There is no evidence on the facts surrounding the conviction of the applicant for violating gun laws. Although crimes involving assault and battery or assault with intent to commit criminal sexual conduct do involve moral turpitude, whether simple assault involves moral turpitude has not been decided. In addition, the law is silent on whether obstruction of justice and criminal domestic violence are crimes of moral turpitude.

Based upon this information, the applicant and James Norman are of sufficient moral character to permit the holding of a license and to permit employment within the establishment.

4. Although "proper location" is not statutorily defined, "rather broad discretion is vested in the Commission in determining the fitness or suitability of a particular location." Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This determination of suitability is not solely a function of geography, but involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact upon the community where it is to be situated. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel v. S.C. ABC Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).

The concerns raised by the Chamber of Commerce are without impact even though they may be valid. Poverty Flat is a private non-profit social organization. Its doors are not open to the general public except by membership and invitation. The potential problems of locating clubs and bars near industries will not affect this location because of the private nature of the organization.

5. In addition, proximity of a location to a church, school, playground, or residence is a proper ground, by itself, on which the location may be found unsuitable for a permit to sell beer and wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653 (S.C. 1991). The location is not near any of these facilities.

6. Section 61-5-50 provides the requirements for the issuance of a mini-bottle license to a bona fide non-profit organization. It states:

The department may grant a license 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, as described in Section 61-5-10.

(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, Section 61-3-440 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 given notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspaper 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. Applicants for a beer or 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 department.

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

(7) The applicant is a legal resident of the United States and 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 South Carolina for at least thirty days before the date of application.

S. C. Code Ann. §61-5-50 (Supp. 1993).

7. One of the criteria is that the corporation or association must have a reputation for peace and good order in its community. The major complaints about the club is the noise level. The only incident reports provided by the Sheriff's office related to the noise after midnight. The clear weight of the evidence is that this club has a reputation for loud noise and disturbing the neighborhood.

8. In order to alleviate this problem certain restrictions are appropriate. These are:

a. No alcoholic liquors may be sold after 2:00 a.m. pursuant to Section 61-5-20 of the 1976 Code of Laws.

b. No live bands except on Friday and Saturday.

c. No loud music after 12 midnight Sunday through Thursday or after 2:00 a.m. on Friday and Saturday.

d. The entire building must be insulated to reduce the sound from emanating to the outside before any license is issued and must be inspected by the Department while the sound system is being operated.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, the applicant, Robert D. Rice is entitled to the issuance of a beer and wine permit and a nonprofit club mini-bottle license upon insulating the building as provided in this Order. The remaining stipulations are on-going conditions which must be met in order to maintain the permit and license. Therefore, it is

ORDERED, that the Department shall issue the on-premises beer and wine permit and the mini-bottle license to Robert D. Rice for Poverty Flats Social Club located on 1572 Finley Highway 176 North in Union, South Carolina upon meeting the requirements set forth in this Order, and with the restrictions as noted in this Order, and upon payment of the appropriate fees.

IT IS SO ORDERED.





_________________________

ALISON RENEE LEE

Administrative Law Judge





December _____, 1994

Columbia, South Carolina.


 

 

 

 

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