ORDERS:
ORDER AND DECISION
This matter came before me on the application of Billy E. King for a sale and consumption
license and a beer and wine permit for a private club called Billy-n-Boop's to be located at 1034 E.
Montague Avenue in Charleston. After notice to the parties, a hearing was held on November 7,
1994. At the hearing the parties stipulated to the sale of beer and wine at the proposed location. The
parties also stipulated that the applicant is qualified under the statute for the issuance of a sale and
consumption license except for one requirement. The one criteria in dispute concerns the location
of the club within 300 feet of a church. The issues presented are whether Emanuel Christian
Fellowship is a church and is using its location to conduct worship services and whether the prior
issuance of a license to this same location acts as an estoppel on the Department. Based upon the
testimony and evidence presented, I make the following:
FINDINGS OF FACT
1. The proposed location of Billy-n-Boop's is 1034 E. Montague Avenue in Charleston.
This location was first licensed in 1984 by the Alcoholic Beverage Control Commission as a private
club. In 1992, the name of the club was changed to Johnny Dollars. No other changes were made
to the private club license. This license was renewed in 1994. On each occasion the application was
investigated by an agent on behalf of the Department.
2. On the corner of E. Montague and O'Hear Avenue is a building used by Emanuel
Christian Fellowship for worship services. Until after Hurricane Hugo in 1989, there were no signs
or markings on the building to indicate that there were religious services. The building does not
manifest the signs or markings traditionally associated with a church.
3. Next door to the Fellowship building is Johnny's Bar and Grill which was issued a beer
and wine permit in 1982 and a sale and consumption license approximately one year ago. These
applications were investigated by an agent on behalf of the ABC Commission. Johnny's Bar and Grill
continues to hold a beer and wine permit and a sale and consumption license.
4. One of the licenses issued to Johnny's Bar and Grill was protested by the minister of
the Fellowship church. The protest was withdrawn upon the stipulation that the bar not open before
1:30 p.m. on Sundays.
5. Emanuel Christian Fellowship is approximately 160 feet from the entrance of the
proposed location.
6. Emanuel Christian Fellowship is part of Kingdom Ministries which is a religious
corporation existing since 1978. It purchased the building located at E. Montague and O'Hear in
1980. After renovations, regular church services at this location began in 1982. Currently, the
church conducts worship services three times a week. The church had no objection to the proposed
location as long as no alcoholic beverages were sold before 1:30 p.m. on Sundays and the general
tenor of the neighborhood remained the same.
CONCLUSIONS OF LAW
1. S.C. Code of Laws § 1-23-600 (Supp. 1993) grants jurisdiction to the Administrative
Law Judge Division to hear cases under the Administrative Procedures Act.
2. The Division has the powers, duties and responsibilities of a hearing officer in
contested matters governing alcoholic beverages, beer and wine. S.C. Code Of Laws §61-1-55
(Supp. 1993).
3. The statutory criteria for obtaining a sale and consumption license for a non-profit club
are contained in Section 61-5-50 of the South Carolina Code. One of these criteria is that locations
established after November 7, 1962 must comply with the provisions of Section 61-3-440. S.C. Code
of Laws § 61-5-50(3) (Supp. 1993).
4. No license may be granted if the place of business is within three hundred feet of any
church, school, or playground if the business is situated within the municipality or within five hundred
feet if the business is outside the municipality. S.C. Code of Laws § 61-3-440 (Supp. 1993).
"Church" is an "establishment, other than a private dwelling, where religious services are usually
conducted." S.C. Code of Laws §61-3-440(1) (Supp. 1993).
5. Emanuel Christian Fellowship is part of a religious corporation and began regular
worship services in 1982. Services are still being held at 1044 E. Montague Street. Pursuant to the
definition provided in the statute, Emanuel Christian Fellowship is a church.
6. Because Emanuel Christian Fellowship is located within 300 feet of the proposed
location, a sale and consumption license may not be issued.
DISCUSSION
The applicant argues that the First Amendment to the United States Constitution which
applies to the State through the Fourteenth Amendment bars enforcement of a statutory ban on
licensed premises within a specified distance of a church. Included in this argument is the provision
in the South Carolina Constitution which prohibits enactment of a law respecting an establishment
of religion. S.C. Const. Art. I § 2 (1895). Citing Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105,
29 L.Ed.2d 745 (1971) and Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d
297 (1982), Appellant states that Section 61-3-440 fails to pass the three prong test for
constitutionality under the Establishment Clause. Applicant's argument is without merit.
The parties agree that the statute restricting the issuance of liquor licenses within 500 feet of
a church is secular in nature to protect spiritual, cultural and educational centers from the activities
of liquor establishments. The South Carolina statute's principal or primary effect is not to advance
or inhibit religion. Unlike the Massachusetts statute in Larkin, our statute does not grant veto power
to the churches over the licenses. And finally, the statute does not foster excessive government
entanglement with religion. The legislature acted directly to create a flat ban on the existence of
liquor establishments within close proximity to a location that conducted religious services. The
churches are not given the power to substitute its judgment for the decision making authority of the
governmental agency.
In fact, applicant urges the Division to reject Emanuel Christian Fellowship as a church. This
entangles the government with religion by requiring the government to decide how a church should
look. The evidence clearly shows that Emanuel Christian Fellowship conducts worship services in
the building, but the applicants argues that because the building does not have a steeple, a large sign
outside to advertise that it conducts worship services, it is not a church and should not be given
protection. This is surely not the view expounded in the Supreme Court cases.
Next, Appellant argues that the Department is estopped from denying the license because it
previously licensed the location. The issuance of the license to the previous owner was in direct
violation of the statute. Once the Department learned of its mistake it is duty bound not to continue
it but to correct it.1 The Department does not have the authority to issue a license in violation of the
statute. The issuance of the license is clearly an ultra vires act. It has long been the law in this state
that estoppel does not lie against a governmental body for an ultra vires act. Baker v. State Highway
Department, 166 S.C. 481, 165 S.E. 197 (1931), overruled on other grounds, McCall v. Batson, 285
S.C. 243, 329 S.E.2d 741 (1985); Patterson v. Goldsmith, 288 S.C. 551, 343 S.E.2d 661 (Ct. App.
1986).
ORDER
Based upon the foregoing Findings of Fact, Conclusions of Law and Discussion, the applicant,
Billy E. King is not entitled to the issuance of a sale and consumption license for the private club to
be known as Billy-n-Boop's. There is no objection to the issuance of the beer and wine permit to
King. The church has no objection to the permit provided that alcoholic beverages are not served
before 1:30 p.m. on Sunday. It is therefore,
ORDERED that the Department of Revenue and Taxation issue the beer and wine permit to
Billy E. King for Billy-n-Boop's upon the payment of the appropriate fees. The sale and consumption
license is denied.
AND IT IS SO ORDERED.
________________________________
ALISON RENEE LEE
Administrative Law Judge Division
December ______, 1994
Columbia, South Carolina. |