ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003),
S.C. Code Ann. § 1-23-600(B) (Supp. 2003), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp.
2003) for a contested case hearing. Petitioner AAA Entertainment Corporation, LLC, seeks an on-premises beer and wine permit and a restaurant minibottle license for a restaurant and tavern to be
located at 1001 Paris Avenue in Port Royal, South Carolina. Respondent South Carolina Department
of Revenue (Department) would have granted the permit but for the protest filed by Chief James L.
Cadien of the Port Royal Police Department regarding the suitability of the proposed location.
Accordingly, the Department was excused from appearing at the hearing of this matter. After timely
notice to the parties and the protestant, a hearing of this case was held on September 14, 2004, at the
Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented
concerning the suitability of the proposed location and upon the applicable law, I find that
Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license
should be granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this case, 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.On or about February 5, 2004, Edward J. Macho submitted an application on behalf
of AAA Entertainment Corporation, LLC, to the Department for an on-premises beer and wine
permit and a restaurant minibottle license for the premises located at 1001 Paris Avenue in Port
Royal, South Carolina. This application and the Department’s file on the application are hereby
incorporated into the record by reference.
2.Petitioner AAA Entertainment Corporation, LLC, which Mr. Macho owns and
operates as the sole shareholder and officer, is a South Carolina limited liability company, organized
on January 9, 1986, and currently in good standing with the South Carolina Secretary of State. AAA
leases the proposed location from Goldberg Properties, and has leased the building housing the
location since the mid-1990s. Neither Mr. Macho nor AAA has previously held a beer and wine
permit or a minibottle license, and there is no evidence in the record suggesting that AAA does not
have a reputation for peace and good order in the Port Royal community.
3.Mr. Macho is over twenty-one years of age and does not have any delinquent state
or federal taxes. Further, the South Carolina Law Enforcement Division (SLED) conducted a
criminal background investigation of Mr. Macho that did not reveal any criminal arrests or
convictions, and the record does not indicate that Mr. Macho has engaged in acts or conduct
implying the absence of good moral character.
4.Notice of Petitioner’s application was published in the Beaufort Gazette, a newspaper
published and circulated in Beaufort County, South Carolina, once a week for three consecutive
weeks, and proper notice of the application was posted at the proposed location for fifteen days.
5.Over the past thirty years, the proposed location has been operated as a variety of
establishments, ranging from a “biker bar” to a pizza pub, all of which have been licensed for the
sale of alcoholic beverages. As noted above, Petitioner became involved with the location in the
mid-1990s, when it began leasing the building. Petitioner initially sublet half of the building to a
pizza pub known as the Squat & Gobble, which operated without incident for several years, while
the other half of the building remained vacant. After the Squat & Gobble closed its doors, Petitioner
first sublet that half of the building, and later sublet the entire 3300-square-foot building, to a
nightclub known as Good Times Restaurant and Pub. The operations of this large nightclub, which
offered live and recorded music and drew a younger and rowdier crowd than prior establishments,
were disruptive to the surrounding community. In particular, neighboring residents complained of
noise disturbances created by the club late into the night.
That nightclub has since been closed, and
the building has been re-divided into two units.
6.Petitioner now seeks to open a small, neighborhood tavern in one half of the building.
Petitioner’s tavern will keep normal “pub” hours, opening at 11:00 a.m. and closing around 2:00
a.m., and will serve normal “pub” food, including hamburgers and french fries but also branching
out into barbequed ribs and other foods.
Because the pub will focus on providing its patrons with
food and beverages, and not upon providing entertainment, the pub will not offer performances of
live music and will not have a jukebox. As a quiet, local pub, Petitioner’s tavern will not create the
sort of noise disturbances and other disruptions associated with the operation of a nightclub.
7.The proposed location is situated along Paris Avenue within the city limits of Port
Royal, South Carolina. Paris Avenue is the main business route running through Port Royal; situated
along this street are the post office, a school, town hall, numerous businesses, and the port terminal.
At the point where Petitioner’s business is located, the area surrounding Paris Avenue is both
commercial and residential in nature, with several businesses fronting on Paris Avenue and
numerous residences situated on side streets behind those businesses. This residential development
includes two rows of homes constructed behind the proposed location during the mid-1990s. While
there are two churches and an elementary school within a half-mile of the location, there are no
churches, schools, or playgrounds within three hundred feet of Petitioner’s pub.
8.The protestant in this matter, Chief James L. Cadien of the Port Royal Police
Department, does not oppose the issuance of a beer and wine permit and a minibottle license to
Petitioner, but rather seeks only to have the special restrictions that were imposed upon prior
licensees operating at the location included as restrictions upon Petitioner’s permit and license.
Specifically, Chief Cadien argues that, because of the proximity of the proposed location to a
residential area and a historic church and because of the history of disturbances caused by prior
businesses at the location, the special restrictions imposed by Judge Anderson upon the permit and
license granted to Good Times Restaurant and Pub, particularly as they apply to noise produced by
the business and its hours of operation, should be applied to Petitioner’s tavern as well. See Final
Order and Decision, Maskarades, Inc. v. S.C. Dep’t of Revenue, Docket No. 01-ALJ-17-0444-CC
(S.C. Admin. Law Judge Div. Nov. 8, 2001); see also Order on Pet’r Mot. for Reconsideration,
Maskarades, Inc. v. S.C. Dep’t of Revenue, Docket No. 01-ALJ-17-0444-CC (S.C. Admin. Law
Judge Div. Jan. 8, 2002) (modifying three of the restrictions imposed in the Final Order and
Decision). Under these restrictions, Good Times was required to employ security guards, refrain
from creating excessive noise, erect a privacy fence, remove a dumpster, and limit its hours of
operation. Id. In order to partially alleviate Chief Cadien’s concerns, Petitioner stipulated that it
would accept the noise restrictions of Judge Anderson’s Final Order and Decision in the Good Times
case as a restriction upon its permit and license; this restriction reads as follows:
The Petitioner shall not allow excessive noise to emanate from [the location]. Any
noise that is noticeably audible within any local residence with closed doors and
windows after 10:00 p.m. shall be considered excessive. Furthermore, for the
purposes of this restriction, any conviction for the violation of the local noise
ordinance shall be considered prima facie evidence of a violation of this provision.
Maskarades, Inc., supra, slip op. at 9.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the South Carolina Administrative Law
Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003), S.C. Code Ann. § 1-23-600(B) (Supp.
2003), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v.
S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984);
see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness
is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility
of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996);
Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
4.S.C. Code Ann. § 61-4-520 (Supp. 2003) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the proposed location be a
proper and suitable one. See id. § 61-4-520(6)-(7).
5.S.C. Code Ann. § 61-6-1820 (Supp. 2003) sets forth the basic criteria for the issuance
of a minibottle license. Although the suitability of the proposed location is not listed in Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic
Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of a particular location for the requested permit.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
7.The determination of suitability of location is not necessarily a function solely of
geography. Rather, 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. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
8.In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C.
324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
9.However, without sufficient evidence of an adverse impact on the community, a
permit 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
48 C.J.S. Intoxicating Liquors § 119 (1981).
10.In the case at hand, I find that the proposed location is suitable for Petitioner’s pub.
While, given its proximity to several residences, the proposed location may not be suitable for the
operation of a nightclub, it is suited for the type of neighborhood tavern proposed by Petitioner.
And, while there is some history of prior establishments at this location disturbing the surrounding
community, the type of business proposed by Petitioner is vastly different in size and nature from
the establishments that created those disturbances. In short, a small, neighborhood pub simply does
not engender the same sort of problems as does a large, loud nightclub, and such a pub can peaceably
coexist with a surrounding residential community in a way that most nightclubs cannot. See, e.g.,
Bergamann v. City of Melrose, 420 N.W.2d 663, 667 (Minn. 1988) (noting that “[a]n establishment
that serves only liquor is qualitatively different from a restaurant that serves liquor only as an adjunct
to food”). Accordingly, I decline the protestant’s request to impose special restrictions upon
Petitioner’s permit and license–beyond the noise restriction voluntarily stipulated to by Petitioner–as
those requested restrictions were tailored to the problems created by the nightclub previously
operated at the location, and would not be suited to the operations of Petitioner’s proposed tavern.
Here, Petitioner meets all of the statutory and regulatory criteria enacted by the South
Carolina General Assembly for the issuance of a beer and wine permit and a restaurant minibottle
license, and there has not been a sufficient evidentiary showing that the proposed location is
unsuitable for Petitioner’s proposed pub or that the issuance of the permit and license would have
an adverse impact on the surrounding community. Therefore, I find that Petitioner’s application for
an on-premises beer and wine permit and a restaurant minibottle license, as restricted by the
stipulation stated above, should be granted.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department GRANT Petitioner’s application for an
on-premises beer and wine permit for the premises located at 1001 Paris Avenue in Port Royal,
South Carolina, subject to the stipulation set forth above.
IT IS FURTHER ORDERED that, upon a satisfactory determination by the Department
that Petitioner’s restaurant operations meet the requirements set out in S.C. Code Ann. § 61-6-20(2)
(Supp. 2003) and 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003), the Department shall GRANT
Petitioner’s application for a restaurant minibottle license for the premises, subject to the stipulation
set forth above.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 6, 2004
Columbia, South Carolina |
