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:
Frank Sims, Jr., Illusions of Anderson, d/b/a Illusions vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Frank Sims, Jr., Illusions of Anderson, d/b/a Illusions

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0636-CC

APPEARANCES:
Kenneth Allen
Attorney for Petitioner

Department of Revenue and Taxation
(Not present at hearing)

Kenneth M. Mattison
Attorney for Intervenors
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1994) for a hearing on the application of Frank Sims, Jr. Petitioner seeks an on-premises beer and wine permit (AI 104747) and a sale and consumption license ("minibottle license" AI 104748) for a nonprofit organization located outside the city limits of Anderson at 2838 South Main Street, Anderson County, South Carolina.

After timely notice to the parties and protestants, a hearing was held at the Administrative Law Judge Division, Columbia, South Carolina. Without objection, the following protestants moved and were granted leave to intervene by previous Order: Charles L. Caler, Jr., R.L. Payne, and Charles E. Hampton. The issues considered at the hearing were: (1) Petitioner's eligibility to hold a beer and wine permit and a minibottle license; (2) the suitability of the proposed business location; and, (3) the nature of the proposed business activity. Petitioner's on-premises beer and wine permit and minibottle license are hereby granted subject to the restrictions stated herein.

STIPULATIONS

1. Petitioner agrees, as a condition to the issuance of a beer and wine permit and minibottle license, that he will take all precautions to prevent sound from emanating from the proposed location, i.e., moderate the volume of music and have contractors construct sound barriers within the proposed location. Petitioner further agrees to any guidelines and restrictions this tribunal wishes to place on a beer and wine permit and a minibottle license regarding sound emanating from the proposed location to ensure the tranquility of the nearby residents. Additionally, Petitioner agrees to adhere to the Anderson County Ordinances, retain a sound expert, unannounced inspections by SLED or whatever restrictions this tribunal deems reasonable and appropriate to prevent sound from emanating from the proposed location.

2. Petitioner agrees, as a condition to the issuance of a beer and wine permit and a minibottle license, that he will have security and parking attendants at the proposed location during its hours of operation to prevent patrons from parking on adjoining lots.

3. Petitioner agrees, as a condition to the issuance of a beer and wine permit and a minibottle license, that he will have parking attendants police the parking lot and pick up litter every night after operation of the restaurant/lounge.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of the evidence:

1. Petitioner seeks an on-premises beer and wine permit and a minibottle license for a nonprofit organization located outside the city limits of Anderson at 2838 South Main Street, Anderson County, South Carolina.

2. Petitioner's application to the South Carolina Department of Revenue and Taxation ("Department") was made a part of the record by reference, without objection.

3. Illusions was declared a non-profit organization duly organized and certified under the laws of the State of South Carolina by the Secretary of State on August 9, 1995. The officers of the organization have adopted bylaws which limit membership; and, the organization is not open to the general public.

4. The proposed location is situated within a highly commercial area of Anderson County off of South Main Street, a four lane major-thoroughfare.

5. The proposed location was previously operated as Shoney's.

6. A bowling alley is located within close proximity of the proposed location, which has an on-premises beer and wine permit; and, Pizza Hut, which is located approximately .5 miles from the proposed location, also has an on-premises beer and wine permit.

7. Other businesses in the vicinity of the proposed location include: Charles Furniture, Anderson Canvas Products, Captain D's, Nations Bank, Advance Auto Parts, Bi-Lo, and Revco.

8. No church, school or playground is within close proximity to the proposed location.

9. There are residences located along South Main Street. The nearest residence is located approximately 155 feet from the proposed location.

10. Petitioner and his wife intend to operate the proposed location as a restaurant/lounge with live entertainment, comedy, and music. The proposed hours of operation are Wednesday through Sunday from 4:00 p.m. to 2:00 a.m.

11. Petitioner and his wife sublease the proposed location from TPI Restaurants, Inc. and Pearlie Ingram, who are leasing the proposed location from Everette H. Newman.

12. The proposed location has parking capacity for approximately sixty (60) cars.

13. Petitioner has made arrangements to have security at the proposed location during business hours and Petitioner will have a crew of employees pick up any litter thrown onto Petitioner's and adjoining land owners' property.

14. The State Law Enforcement Division ("SLED") completed a criminal background investigation of Petitioner and his wife, Mona Sims. The SLED report revealed no criminal violations; and, neither Petitioner nor his wife have engaged in acts or conduct that imply the absence of good moral character.

15. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South Carolina, and has maintained his principal residence in the state for at least thirty (30) days prior to the date of making application for an on-premises beer and wine permit and a minibottle license.

16. Petitioner has never had a license or permit for the sale of alcoholic beverages.

17. Notice of the application appeared in the Anderson Independent-Mail, a newspaper of general circulation in the area of the proposed location, for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.

18. The Department did not oppose the application, as evidenced by its failure to appear at the hearing.

19. Several protestants testified in opposition to the permit and license in question. As justification for denial of the on-premises beer and wine permit and minibottle license, the protestants cited: (1) their aversion to the sale of alcoholic beverages; (2) possible disturbances caused by loud noise emanating from the proposed location; (3) traffic safety concerns; (4) the proximity of the proposed location to residences; and, (5) concern that there will be a littering problem.

CONCLUSIONS OF LAW AND DISCUSSION

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. 1994) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this case.

2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance of a beer and wine permit.

3. S.C. Code Ann. §§ 61-5-20(3) and 61-5-50 (Supp. 1994) establish the criteria for the issuance of a minibottle license to a nonprofit organization.

4. Although "proper location" is not statutorily defined, broad discretion is vested in this Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).

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. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. 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.2d 335 (1985); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. There has been no evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit and a minibottle license would affect the residents' safety, create traffic problems, or have an adverse impact on the community. The proposed location and the nature of the business activity are suitable and proper given the commercial nature of the surrounding area.

9. Petitioner meets all of the criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit and a minibottle license. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. The mere aversion to the sale of alcoholic beverages by the proposed location is not a sufficient basis on which to deny Petitioner's request.

This tribunal aims to balance the interests represented here. Thus, if the Petitioner's organization can be operated without adversely affecting the surrounding residences and businesses, the issuance of the permit and license is the proper course under the circumstances of this case. The area in which the proposed location is situated is highly commercial in nature. Moreover, the street on which the proposed location is situated is a major four lane thoroughfare. Furthermore, the proposed location was previously operated as Shoney's, which had a constant flow of traffic. While there are residences in the immediate area, there are several businesses within close proximity to the proposed location, two of which currently have beer and wine permits.

The primary and meritorious concerns presented by the intervenors were the possible noise and littering that might result from Petitioner's organization. Petitioner has stipulated, as a condition to the issuance of the permit or license, to any restriction this tribunal deems appropriate and reasonable to impose regarding the sound proofing of the building of the proposed location. Petitioner also stipulated that employees will ensure that the parking lot is free from litter each night after operation once patrons have vacated the parking lot. By transforming these stipulations into restrictions on the Petitioner's permit and license, the concerns of the intervenors are appropriately addressed. That is, there are no apparent reasons why Petitioner's operation and surrounding business and residences should not harmoniously coexist. For the foregoing reasons, the proposed location is suitable and proper for the issuance of an on-premises beer and wine permit and a minibottle license.

10. 23 S.C. Code Regs. 7-88 (1976), authorizing the imposition of restrictions to permits, provides:

Any stipulations 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 permits and 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.











RESTRICTIONS

As a condition precedent to the issuance of a beer and wine permit and a minibottle license to the Petitioner for a location at 2838 South Main Street, Anderson County, South Carolina, Petitioner shall comply with the following restrictions:

1. Petitioner shall sound proof the physical structure of the proposed location so that the type of activities he intends to provide, such as live music and amplified dance music, is predetermined to comply with the attached Anderson County Noise Nuisance Ordinance #321 (adopted November 13, 1990) and the attached Anderson County Code, § 38-199.

2. Petitioner shall have an acoustical engineer or other person qualified to measure sound pressure levels with a sound level meter and an octave band analyzer to attest that he/she has conducted sound tests of the proposed location. The sound tests conducted must be of actual or simulated sounds of the types of music and activities Petitioner intends to conduct at the proposed location. The acoustical engineer or other qualified person must determine and attest in writing that such activities are within the sound pressure levels allowed by the above-referenced ordinances in order for the Petitioner to be issued the permit and license in question. Further, Petitioner shall provide the Department with this information prior to and as a condition of the issuance of the on-premises beer and wine permit and minibottle license.

Upon issuance of the permit and license, Petitioner shall be subject to the following restrictions:

3. After the issuance of the license and permit, if the Petitioner is convicted of three violations of the noise ordinances referenced herein, the Petitioner's permit and license shall be revoked.

4. Each night at the close of its operation, Petitioner shall remove any litter in his parking lot or on adjoining properties, which resulted from Petitioner's operation, upon proper authorization of owners. Further, Petitioner shall take proper measures, as stipulated, to ensure that his patrons do not park on any neighboring properties, unless otherwise authorized by respective property owners.



ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Department of Revenue and Taxation issue an on-premises beer and wine permit and minibottle license to Frank Sims, Jr., Illusions of Anderson, d/b/a Illusions for a location at 2838 South Main Street, Anderson County, South Carolina upon satisfaction by Petitioner of Restrictions (1) and (2), stated above; the Petitioner signing a written agreement to be filed with the Department to adhere to Restrictions (3) and (4), stated above; and, payment of the required fee(s) and cost(s) by Petitioner.

IT IS FURTHER ORDERED that if the Petitioner is convicted of three violations of the noise ordinances referenced herein, the Petitioner's permit and license shall be revoked.

AND IT IS SO ORDERED.





__________________________________

JOHN D. GEATHERS

Administrative Law Judge

Edgar A. Brown Building

1205 Pendleton Street

Columbia, South Carolina 29201

December 1, 1995

Columbia, South Carolina


 

 

 

 

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