ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division
pursuant to S.C. Code Ann. 61-1-55, et seq. (Supp.
1995) and S. C. Code Ann. 1-23-310 et seq. (1986 and Supp.
1995) for a contested case hearing. The Petitioner, Anthony
L. Green, seeks a renewal for an on-premise beer and wine permit
and sale and consumption license for Park Avenue.
The Respondent's attorney made a Motion to be Excused which was
granted by my Order dated August 30, 1996. A hearing
was held on October 16, 1996, at the Administrative Law Judge
Division.
The Permit requested by the Petitioner is approved with
restrictions.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the
hearing and closely passed upon their credibility,
taking into consideration the burden of persuasion by the Parties
or Protestants, I make the following Findings of Fact
by a preponderance of evidence:
1. The Petitioner obtained an on-premise beer and wine permit
and a sale and consumption license for
Park Avenue at 2706 N. Main Street, Columbia, South Carolina
in June or July of 1995. He now seeks to
renew the permit and license.
2. Notice of the time, date, place and subject matter of the
hearing was given to all parties involved.
3. The qualifications set forth in S. C. Code Ann. 61-9-320
(Supp. 1995) concerning the residency and
age of the Petitioner are properly established.
Furthermore, the Petitioner has not had a permit or
license revoked within the last two years and notice of the
application was lawfully posted both at the
location and in a newspaper of general circulation.
4. The Petitioner is of sufficient moral character to receive a
beer and wine permit.
5. The proposed location is not unreasonably close to any
church, school or playground.
6. The Respondent's object to the renewal of the Petitioner's
permit for the following reasons:
a) The establishment is not suitable for a
residential neighborhood.
b) The Petitioner's customers make excessive noise in
the vacant lot beside the
location.
c) The Petitioner's sound system produces excessive
noise, especially given the nature
of the area.
d) The traffic and parking at the location creates
difficulties for the local residents.
7. Park Avenue is located on Main Street in a commercial area
of Columbia. The establishment is open only
on Friday and Saturday from 10:00 a.m. to 4:00 a.m.
8. The location has been permitted or licensed at least 12 of
the last 13 years. However, the location
currently generates more noise and traffic than the previous
clubs. The elevated noise is generated by
the increased bass from the updated sound system.
Furthermore, the additional patronage by customers
at this location has resulted in difficulties in handling
the overflow parking. To accommodate the
additional parking needed for his customers, the Petitioner
provides parking in an empty parking lot
across Main Street from the location and in a vacant lot
behind the location enumerated as lots 3, 4
and 5 on Respondent's Exhibit 1. Individuals who park in the
vacant lot frequently talk and play their
music loudly.
9. On August 1, 1995, one month after the Petitioner's business
opened, the Sottongs moved into their
home beside the location. The Sottongs believed that the
location was a "neighborhood" type bar based
solely on what their real estate agent told them. Neither
the Sottongs or Mr. Geiger protested the
Petitioner's original application.
10. As a result of the complaints by the Sottongs and the
neighborhood association the Petitioner made
the following accommodations:
a) Erected a fence and chain barricade between the
Sottongs home and his location as
reflected in Petitioner's Exhibit 5,
b) Posted a security guard outside of the location to
supervise traffic and control noise
c) Either the Petitioner and/or his employees
disposed of trash around his location
after closing
d) Moved the security light and trash receptacle to
eliminate the nuisance created by
rats in the area.
11. The person that previously held a permit and license at the
Petitioner's location had the following
restrictions placed upon his permit and license by the ABC
Commission:
a) The Applicant must make arrangements for his
customer's parking that was approved
by the ABC Commission,
b) The Applicant must keep a outside security guard
on duty during all hours of
operation to supervise the customers parking and
noise.
c) The noise level of the establishment "must be
maintained so that it does not disturb
the neighbors."
I find that the evidence supports the continued enforcement
of these restrictions.
12. Since the proposed location is in close proximity to a
residential community, and the nature of its
business has recently changed, it is suitable for the
on-premise sale of beer and wine and sale and
consumption, only with the restrictions set forth below.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of
law the following:
ORDER
Based upon the Findings of Fact and Conclusions of Law, it
is hereby:
ORDERED that the renewal application for an on-premise beer
and wine permit and sale and consumption license
of Anthony L. Green for Park Avenue at 2706 N. Main Street,
Columbia, South Carolina be granted upon the Petitioner
signing a written Agreement with the South Carolina Department of
Revenue to adhere to the stipulations that are set
forth below:
1. The Petitioner shall maintain proper lighting around
Park Avenue to discourage criminal
activity. The Petitioner shall insure that the lights
do not reflect or shine upon the local
residences.
2. The Petitioner shall contract with a bonded security
company or an off-duty law enforcement
officer, as permissible under the law, to employ no
less than two uniform security guards to
patrol the area surrounding Park Avenue. The security
guards shall prohibit a public
disturbance of any kind at the location.
3. The Petitioner shall establish a customer parking plan
that is approved in writing by the
South Carolina Department of Revenue and the individual
owners of the parking area. The
above security guards shall monitor the approved
parking areas to prohibit the consumption
of any alcohol or drugs, loitering or excessive noise
in those areas.
4. As long as the Petitioner holds a permit or license for
this location, the current fence
reflected in Petitioner's Exhibit 5 shall be maintained
in good condition to accomplish both
the limitation of movement between the properties and a
good appearance.
5. The Petitioner or his employees shall pick up litter
and debris from the ground of the nearby
residences located on Geiger Avenue within four hours
of the closing of Park Avenue.
6. The Petitioner shall not allow excessive noise to
emanate from Park Avenue. Any noise that
noticeably audible within any local residence with
closed doors and windows shall be
considered excessive. Furthermore, for the purposes of
this restriction, any conviction for the
violation of the county noise ordinance shall be
considered prima facia evidence of a violation
of this provision.
7. The Petitioner shall not sell beer, wine or alcohol
after 1:00 a.m.
IT IS FURTHER ORDERED that a violation of any of the above
restrictions be considered a violation against the
permit and license and may result in a fine, suspension or
revocation.
IT IS FURTHER ORDERED that the Department of Revenue issue
an on-premise beer and wine permit and sale
and consumption license upon the payment of the required fee and
cost by the Applicant.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
November 14, 1996
Columbia, South Carolina |