SC Administrative Law Court Decisions

This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2006), 61-2-260 (Supp. 2006), 61-4-525 (Supp. 2006) and 61-6-1825 (Supp. 2006). SBB Q Inc., d/b/a The Hog Pound (“Petitioner”), seeks an on-premises beer and wine permit (“permit”) and restaurant liquor by the drink license (“license”) for its location at 2921 Georgetown Highway, Andrews, South Carolina (“location”). The South Carolina Department of Revenue (“Department”) denied Petitioner’s application for a permit and license based upon public protests to the applications that were filed with the Department, and because the location had a drive-through window in violation of S.C. Code Ann. § 61-2-170 (Supp. 2006). In addition, the Department denied the application because at the time of the South Carolina Law Enforcement’s Division’s (“SLED”) inspection of the location, it did not meet the requirements of a liquor by the drink license in that it had inadequate food on-premises and no menus.

Pursuant to notice to the parties, a hearing in this matter was held on August 7, 2007 at the Court in Columbia, South Carolina. Both parties and the Protestants appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for an on-premises beer and wine permit and restaurant liquor by the drink license should be granted with restrictions.

FINDINGS OF FACT

Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner seeks an on-premises beer and wine permit and restaurant liquor by the drink license for its location at 2921 Georgetown Highway, Andrews, Georgetown County, South Carolina; it is located outside the city limits.

2. Petitioner is a corporation in good standing with the South Carolina Secretary of State. It has a reputation for peace and good order in the community.

3. Todd E. Price is the principal and owner of SBB Q Inc., d/b/a The Hog Pound. Mr. Price is over the age of twenty-one (21) and is of good moral character. He is a legal resident of the State of South Carolina and has maintained his principal place of abode in this state for at least thirty (30) days prior to making this application. He has never had a beer and wine permit or alcohol license revoked.

4. Notice of the application was lawfully posted at the location and in a newspaper of general circulation.

5. The location currently operates as a restaurant that is primarily and substantially engaged in the preparation and serving of meals. Its menu includes appetizers, wings, salads, sandwiches, burgers, hot dogs, and barbeque. Its current hours of operation are Tuesday through Saturday from 11:00 a.m. to 10:00 p.m. If the permit and license are granted, the location’s proposed hours of operation will be from 11:00 a.m. to 1:00 a.m. Monday through Saturday, and 12:00 p.m. to midnight on Sunday.

6. Mr. Price holds on-premises beer and wine permits and restaurant liquor by the drink licenses for three (3) other locations in Murrells Inlet, Horry County, South Carolina: SBB Original, SBB Four Corners, and Hoof n’ Finz. SBB Four Corners is a 40,000 square foot venue that Mr. Price rents out for motorcycle rallies and special events such as car auctions. SBB Original and Hoof n’ Finz are restaurants that operate year-round.

7. The location operated as a restaurant in the past and has a full kitchen inside. It has seating inside for forty (40) people. The location also has a drive-through window. Petitioner does not intend to sell alcohol through that window, only take-out food orders.[1]

8. Outside the location is a cookhouse where barbeque may be cooked and an enclosed area where food may be sold and/or served. Petitioner intends to have pig pickings outside at the location on Saturdays and Sundays throughout the year. There is also a small bandstand outside the location and a beer bus. Petitioner does not intend to sell liquor from or out of the beer bus; however, it does intend to sell and serve beer from the beer bus, particularly during events such as the spring and fall bike rallies.

9. Petitioner leases the location, with an option to buy, from SBB Andrews, LLC. Mr. Price is a managing member of SBB Andrews, LLC. The leased premises contains approximately four (4) acres.

10. There is a gravel parking area in the front area of the location. If it becomes full, there are additional areas around the location that may be used for parking.

11. There is no permanent outside lighting at the location.

12. Petitioner intends to conduct special events during the spring and fall bike rallies in Horry County. The spring rally in mid-May lasts approximately ten (10) days and a fall rally is normally the last weekend of September or first weekend of October. The fall rally lasts approximately five (5) days. Petitioner intends to cater solely to bikers during the times these bike rallies are held.

13. The spring rally each year brings approximately 250,000 motorcyclists into Myrtle Beach and the fall rally brings in approximately 125,000 motorcyclists there.

14. The intent of Mr. Price is to open the Andrews location as a place for bikers to ride from Myrtle Beach. During bike rallies in Myrtle Beach, the motorcyclists just go from place to place right next door to each other. Mr. Price estimates that the proposed location could draw anywhere from 200 to 2000 motorcyclists.

15. Petitioner intends to advertise its location as a destination during the spring and fall rallies in several different publications. The location will be advertised as Suck Bang Blow. However, Petitioner does not intend to place signage on or advertise the name Suck Bang Blow at or on the real property at the location.

16. Petitioner intends to provide live entertainment at certain areas outside the location during bike rallies, including on Sundays.

17. There is a “burn out” pit at the location. Motorcyclists drive their motorcycles into these pits and race their engines in an effort to burn rubber off the tires. This activity creates loud noise.

18. Mr. Price intends to use the same management techniques and procedures at this location as he does at the other locations he operates. He holds monthly meetings at the other locations and conducts periodic inspections of them. He intends to visit the Andrews location at least once a month, depending on the location’s performance. He is willing to hire extra security during rallies, if necessary.

19. Employees who serve or could serve alcohol are required to complete “ServSafe Alcohol” training that teaches employees how to serve alcohol responsibly. However, no one under the age of twenty-one (21) will be allowed to serve alcohol at the location.

20. It is Mr. Price’s policy that reasonable measures must be taken to prevent intoxicated persons from leaving the property in a motor vehicle. These measures include calling a friend or relative, or paying for a taxi to drive the individual home, or, if necessary, calling law enforcement to assist with the alcohol-impaired customer.

21. The proposed location is in a rural area, approximately six (6) miles from the town of Andrews. There are several churches in close proximity. However, none of the churches are within five hundred (500) feet of the location. There are two residences near the location; however, those residents are affiliated with the entity that leases the location to Petitioner. A convenience store licensed for the sale of beer and wine for off-premises consumption is also located near the location.

22. The Georgetown County Sheriff’s Office (“Sheriff’s Office”) filed a protest to the application. Assistant Sheriff Rodney Carter Weaver appeared on behalf of the Sheriff’s Office and offered testimony. He has been Assistant Sheriff for the Sheriff’s Office for approximately six (6) years. Prior to that employment, he served as a special agent with SLED for approximately sixteen (16) years.

Assistant Sheriff Weaver’s primary concern is public safety. He is concerned that if the location is permitted and licensed, the Sheriff’s Office will be unable to handle the volume of people who will attend events at the location during the spring and fall rallies. There are eighty-three (83) sworn officers in the Sheriff’s Office and they are responsible for policing 800 square miles. They receive approximately 3,000 calls for service each month. Mr. Weaver has worked at both the spring and fall rallies in Myrtle Beach in the past and has experience with crowd control at those events. Due to the volume of people who attend those rallies, Horry County is required to call on resources from other state agencies, including the South Carolina Highway Patrol, SLED, the South Carolina Department of Public Safety, and the South Carolina Department of Natural Resources, among others, to assist with crowd control. Essentially, the Sheriff’s Office is concerned that the rallies will put a considerable strain on law enforcement in the general area of the location because even if only a small number of bikers attend events at the location, the Sheriff’s office will, of necessity, have to plan for and engage resources in preparation for the event. Further, its resources will be limited in providing assistance to other Georgetown County residents and businesses that make calls for assistance during those times.

23. During the spring and fall rallies, the SBB’s in Myrtle Beach sponsor outside music, competitions, and sporting events, including motorcycle stunt jumping events. Other SBB events include motorcycles in a cage and other competitions such as wet t-shirt contests.

24. Pastor Elbert Welch filed a protest to the application and appeared at the hearing. At the time the protest was filed, he was the pastor at Andrews Holiness Church, which is located approximately 1,141 feet from the location.[2] The church has approximately five (5) members and holds worship services and Sunday school every Sunday morning from 10:00 a.m. to approximately 12:30 p.m. Between twenty (20) and twenty-five (25) children attend Sunday school at the church. Services are also held on Sunday evenings beginning at 6:00 p.m., and on Wednesday evenings beginning at 7:30 p.m. The church also has four (4) week-long revivals each year. Pastor Welch is concerned that activities at the location, especially noise, loud music, and traffic congestion, will interrupt church services and disturb the surrounding community.

23. Reverend Gregg Cannon filed a protest to the application and appeared at the hearing. When his protest was filed, he was the Superintendent of the Free Will Baptist Conference of Pentecostal Faith, which owns Andrews Holiness Church. His primary concern is that gatherings at the location will interrupt church services; however, he is also concerned that patrons of the location may end up parking in front of the church. Reverend Cannon is also opposed to the consumption of alcohol.

24. Pastor Herbert James Petty also filed a protest to the application and appeared at the hearing. He is the pastor at the Six Mile Crossing Church of God, which is located approximately ½ mile from the location. He lives on church property adjacent to the church. The church has approximately one hundred and five (105) members, and holds worship services and Sunday school each Sunday morning at 10:00 a.m. On Sunday evenings, it has a choir practice that begins at 5:00 p.m. and an evening worship service that begins at 6:00 p.m. A Bible study is also held at the church on Tuesday evenings. Pastor Petty is primarily concerned about noise emanating from the location. He also expressed concern due the location’s position beside and adjacent to Highway 521, a major four-lane highway, and the location’s proximity to nearby neighborhoods. Pastor Petty is also opposed to the consumption of alcohol.

25. At the time of the hearing, Petitioner had not yet undergone its final inspection by SLED.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 2006) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2006) grants the Administrative Law Court the responsibility to determine contested cases matters governing alcoholic beverages, including beer, wine and liquor.

3. S.C. Code Ann. § 61-4-520 (Supp. 2006) sets forth the requirements for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2006) sets forth the requirements for the issuance of restaurant liquor by the drink license. Section 61-6-1820(1) provides that an applicant may receive a license upon the finding that “[t]he applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.”

5. S.C. Code Ann. Regs. 7-401.3 provides that an establishment holding a restaurant liquor by the drink license must have menus readily available to its patrons and must prepare, for service to its patrons, hot meals at least once each business day the establishment is open. Food and snacks prepared off the licensed premises but sold thereon do not constitute a meal.

6. S.C. Code Ann. § 61-6-120 (Supp. 2006) provides that a liquor license shall not be issued to a place of business if:

the place of business is …within five hundred feet of any church, school, or playground situated outside a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along a public thoroughfare from the point of the grounds in use as part of such church, school, or playground…

23 S.C. Code Ann. Regs. 7-303 (Supp. 2006) clarifies how distances from the location to schools, churches, and playgrounds are measured.

7. S.C. Code Ann. § 61-2-170 (Supp. 2006) prohibits the issuance of licenses and permits which authorize liquor, beer, or wine to be sold on a drive‑through or curb service basis.

8. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

9. 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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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 Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

10. Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The determination of suitability of 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates any adverse effect the proposed location will have on the community. Palmer, supra. It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, in considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Id.

11. Unless there is 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 by itself to deny the application. See 45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); See 48 C.J.S. Intoxicating Liquors § 166 (2004).

12. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the State’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

13. The Department may seek revocation or suspension of permits for the sale of beer and wine “on its own initiative or on complaint signed and sworn to by two or more freeholders resident for the preceding six months in the community in which the licensed premises are located or by a local peace officer, all of whom are charged with the duty of reporting immediately to the department a violation of the provisions of Section 61‑4‑580…” S.C. Code Ann. § 61-4-590 (Supp. 2006). The Department may also seek to suspend or revoke a liquor by the drink license pursuant to S.C. Code Ann. § 61-6-1830 (Supp. 2006).

14. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2006) authorizing the imposition of restrictions on permits, provides:

Any written stipulation and/or agreement which is voluntarily entered into by an applicant for a permit or license between the applicant and the Department, if accepted by the Department, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the permit or license and shall have the same effect as any and all laws and any and all other regulations pertaining to the permit or license.

Knowing violation of the terms of the stipulation or agreement shall constitute sufficient grounds to revoke said license.

15. After considering all of the above, with the restrictions set forth below, Petitioner meets the statutory requirements for holding an on-premises beer and wine permit and restaurant liquor by the drink license at the location. Accordingly, I conclude that Petitioner’s application for an on-premises beer and wine permit and restaurant liquor by the drink license should be granted as long as it conforms to the restrictions set forth below.

Protestant Weaver expressed concern that the events at the location during the spring and fall rallies may place a strain on law enforcement. The Sheriff’s Office only has eighty-three (83) sworn officers who are responsible for policing 800 square miles in the county. Further, they receive approximately 3,000 calls for service each month. Based upon those numbers and Assistant Sheriff Weaver’s experience working crowd control at the Myrtle Beach bike rallies, the Court is extremely concerned that activities at the location will place a strain on law enforcement in the area.

Mr. Price estimates that the location may draw between 200 and 2000 motorcyclists. However, the rallies in Myrtle Beach draw between 125,000 and 250,000 motorcyclists. Because he anticipates that this location will draw members of that group to the location, it is possible that this location could draw many more than 2000. Therefore, I find that it is imperative that Petitioner provide assistance in assuming the probable burden that will likely be placed upon law enforcement when rallies or other special events (i.e. pig pickings, etc.) are held at the location. Accordingly, the owners of Petitioner are required to meet with the Sheriff’s Office at least one week (preferably two weeks) prior to the beginning of the two bike rallies held annually in Horry County and prior to other special events planned at the location which involve outside events. During these meetings, they will discuss and plan for the required manpower needed to properly police the general area at the location and Highway 521, as well as all properties within 1,500 feet of the location. They will also determine the number of traffic control devices needed to support local law enforcement. Petitioner will be responsible for hiring and paying for the services of needed security personnel. Further, traffic control devices will also be provided at Petitioner’s expense. Security personnel will be stationed at those locations determined by the Sheriff’s Office and will be employed during those hours as determined by the Sheriff’s Office. If Petitioner cannot agree with the Sheriff’s Office as to the required security personnel and traffic control devices to be hired and purchased, as well as other requirements the Sheriff’s Office determines are needed to protect the health, safety and welfare of the citizens who live in the community and the traveling public, and that are needed to ensure that activities at local churches can be held in a quiet and peaceful manner, the Sheriff’s Office will notify Respondent, and Respondent will then ensure that the beer and wine permit and liquor by the drink license for the location are suspended during those times.

Although opposition to the consumption of alcohol is not a sufficient ground on which to deny a permit or license, based upon the many worries expressed by the Protestants, I am concerned about the possible disruption to church services based upon noise generated from the high volume of motorcycles and music at the location during rallies and other special events. Therefore, I find it is necessary to restrict the location’s hours of operation on Sunday from 1:00 p.m. to 10:00 p.m. Further, on Sunday, no live bands will perform at the location.

Petitioner has also indicated that if the permit is denied, he will allow patrons to bring their own alcohol, beer and wine into the location. Accordingly, I believe that the interests of the Protestants will be better protected by the issuance of a beer and wine permit and liquor by the drink license which is subject to regulation by this State. Therefore, I find that the location meets the suitability requirements and would not have an adverse impact on the surrounding community as long as it is regulated and subject to the restrictions set forth below. Notwithstanding, this Court will entertain any emergency request made by the Respondent to suspend or revoke the permit and/or license based upon a violation of any restriction, statute, or regulation.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the application for an on-premises beer and wine permit and restaurant liquor by the drink license submitted by SBB Q Inc., d/b/a The Hog Pound for its location at 2921 Georgetown Highway, Andrews, South Carolina is GRANTED contingent upon Petitioner signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

RESTRICTION

1.      Petitioner’s hours of operation at the location shall be between 11:00 a.m. and 12:00 a.m. (midnight) Monday through Saturday and 1:00 p.m. until 10:00 p.m. on Sunday.

2.      The drive-through window at the location must be removed before the permit and license are issued.

3.      Petitioner and its employees will, at all times, prohibit the consumption of beer, wine and alcoholic beverages in all parking areas at the location and loitering along Highway 521.

4.      Beer may be sold from the beer bus only during rallies and special events. When rallies or other special events are not being conducted, beer may be sold and purchased only inside the restaurant. All liquor must be sold only on the inside of the restaurant during all times.

5.      Live bands will not be permitted at the location except during rallies and special events, and, during those events, they may only perform at the bandstand. Their performance must end not later than 11:30 p.m. every night they perform. No lives bands are permitted at the location on Sundays.

6.      At all times of operation, all windows and doors at the location must remain closed. Furthermore, no music, by bands, speakers, or otherwise, including karaoke, is permitted to be played on the outside of the building at the location, except as otherwise provided herein. Petitioner and its employees will not allow excessive noise to emanate from the location at any time. After 10:00 p.m., any noise that is noticeably audible within any local residence with closed doors and windows shall be considered excessive; however, during rallies and special events, any noise that is noticeably audible within any local residence with closed doors and windows after 11:30 p.m. shall be considered excessive. Further, any conviction for the violation of the county noise ordinance will be considered conclusive evidence of a violation of this provision.

7.      Petitioner will ensure that all litter at the location is collected and removed daily.

8.      There will be no motorcycle “burn-out” pits at the location. In addition, no other outside competitions or sporting events, including motorcycle stunt jumping events, will be allowed or sponsored by Petitioner at the location.

9.      Prior to the beginning of the two bike rallies held annually in Horry County and prior to any other special events planned at the location which involve outside events, Petitioner must meet with representatives of the Sheriff’s Office. During these meetings, they will discuss and plan with them for the required manpower needed to properly police the general area at the location and Highway 521, as well as all properties within 1,500 feet of the location. They will also determine the number of traffic control devices needed to support local law enforcement. Petitioner will be responsible for hiring and paying for the services of all the security personnel. Further, traffic control devices will be provided at Petitioner’s expense. Security personnel will be stationed at those locations determined by the Sheriff’s Office and will be employed during those hours as determined by the Sheriff’s Office. If Petitioner cannot agree with the Sheriff’s Office as to the required security personnel and traffic control devices to be hired and purchased, as well as other requirements the Sheriff’s Office determines are needed to protect the health, safety and welfare of the citizens who live in the community and the traveling public, and that are needed to ensure that activities at local churches can be held in a quiet and peaceful manner, the Sheriff’s Office will immediately notify Respondent, and Respondent will utilize its resources and notify SLED to ensure that the beer and wine permit and liquor by the drink license for the location are suspended during those times.

10.  Petitioner must employ at least one person to continuously patrol the exterior of the building at the location during all hours of operation.

11.  Parking is permitted only at designated parking areas on the location’s property. No parking is allowed along the side of the public road at the location. Further, no parking is allowed on or in front of any neighboring properties without the express written permission of the owner, which written permission must be provided to Respondent and the Sheriff’s Office.

12.  Petitioner will construct a wooden stained privacy fence at least six (6) feet in height around the location, which includes the cookhouse, concrete slab and bandstand, as reflected in Respondent’s Ex. 1 at p. 10. The fence must be constructed within forty-five (45) days from the date of this Order. As long as the Petitioner holds a beer and wine permit and/or liquor by the drink license for this location, the fence must be maintained in good condition, as determined by Respondent.

13.  A final inspection must be conducted by SLED to confirm that the location complies with the restaurant provisions of Title 61, the regulations thereunder, and the restrictions set forth herein.

14.  Petitioner will provide the Department with a Grade “A” certificate from the South Carolina Department of Health and Environmental Control prior to issuing the permit and license.

15.  Sufficient food to prepare hot meals must be kept on hand at the location at all times as required by S.C. Code Ann. Regs. 7-401.3.

AND IT IS SO ORDERED.

__________________________________

September 28, 2007 Marvin F. Kittrell

Columbia, South Carolina Chief Administrative Law Judge