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 |