ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-4-520 (Supp. 2005) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit and liquor by the drink license (denominated as a business minibottle license on the application) for the location at 3102 Highway 17 South, North Myrtle Beach, South Carolina. This matter is presently before the Court following the Department’s denial of this application due to the proximity of this club to a proposed gentleman’s club with nude dancing. The two businesses would share the same building and possibly have common ownership. After notice to the parties, a hearing was conducted on October 24, 2006 in Columbia, South Carolina. At the hearing, the parties and their counsel were present as indicated. I find and conclude that the application for the license and permit requested by the Petitioner is not necessary and dismiss this matter.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit and sale and
consumption license for the location located at 3102 Highway 17 South North Myrtle Beach, South Carolina. This location is planned as a restaurant, and has been licensed for an on-premises beer and wine permit and a sale and consumption (previously known as a business minibottle license) license since 2001. The Petitioner submitted a new application due to a change in the nature of the business. The owners plan to carve a portion of the building out for a different use than the currently existing restaurant. This new portion of the business may be a club with nude dancing, a retail liquor store, or a seven day off-premises beer and wine store. The Petitioner acknowledges that they would need to get authorization from the city of North Myrtle Beach, and possibly the Department of Revenue for the new business venture.
2. The Respondent, South Carolina Department of Revenue, determined that the proximity of the current location to the proposed location, and the likelihood of an all nude club, rendered this application unacceptable. Specifically, the Final Determination issued by the Department stated, “Your proposed location is not only contiguously located in the same complex as a licensed nude dancing establishment, but has identical ownership with the Crazy Horse Gentleman’s Club. The Department’s position is that with the factors of such close proximity and the ties of ownership, the location would be patently unsuitable as both alcohol and nude dancing would effectively occur within the same location and violate the spirit of the law as written.”
3. The Petitioner is proposing to carve out approximately 20% of the current building for another business venture. This application is for the continuation of the restaurant in the remaining, albeit diminished, space. The Petitioner acknowledged at the hearing that it was not convinced that this application is necessary. The Department also acknowledged that it encourages licensees to apply for a new license when the issue is whether a change in the business is sufficient to trigger a new application under SC Code Ann. §61-2-140 (B). that code section requires that a license be surrendered when there is a “change in the character of the property, facilities or nature of the business activity for which a license or permit has been issued.” The Petitioner’s cover letter stated that it was filing the application “out of an abundance of caution . . . that doing so may be required by Section 62-2-140 (B).”
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Court has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2005).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3. Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).
4. It is also the fact finder’s responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered.
5. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
6. 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 a Protestant objects to the issuance of a permit is not a sufficient reason alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
7. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
8. SC Code Ann. § 61-4-580 lists several activities that are prohibited in the location covered by a beer and wine permit, including permitting games of chance (with exceptions); permitting lewd, immoral or improper entertainment; permitting any act which constitutes a public nuisance; sell or possess any alcoholic beverage which is prohibited in the state; conduct a drinking game or contest. In addition, SC Code Ann. § 61-6-120 states that the Department shall not grant a license under Article 3 of the Alcoholic Beverage Control Act within 300 feet of any church, school or playground within the city limits. Although this section primarily deals with retail liquor licenses, it shows that the legislature has limited the location of alcohol outlets near certain kinds of activities. There is not statutory prohibition against licensing an alcohol outlet near an establishment that allows nude dancing. Without a specific prohibition dealing with the proximity of a licensed location to a nude club, any decision would be anticipatory and advisory.
9. It is settled law that this Court will not issue advisory opinions on questions for which no meaningful relief can be granted. Jones v. Dillon-Marion Human Resources Development Commission, 277 S.C. 533, 291 S.E.2d 195 (1982)., Matter of Angela Suzanne C.
286 S.C. 186, 332 S.E.2d 542 (Ct. App.,1985.)
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for a new on-premises beer and wine permit and liquor by the drink license (denominated as a business minibottle license on the application) for the location at 3102 Highway 17 South, North Myrtle Beach, South Carolina is not necessary. The proposed changes to the building do not constitute a significant enough change to implicate the statute. This matter is dismissed.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
December 11, 2006
Columbia, South Carolina |
