ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (ALC or Court) pursuant to
S.C. Code Ann. §§ 61-2-90 & 61-2-260 (Supp. 2006) and S.C. Code Ann. §§
1-23-310 et seq. (Supp. 2006) for a contested case hearing. Petitioner
is seeking an on-premises beer and wine permit and liquor by the drink license
for Coco’s on the Beach (Coco’s). After proper notice, a hearing was held on October
10, 2007 at the offices of the ALC in Columbia, South Carolina.
At the start of the Hearing, the Motion for Intervention by
Protestants, Nancy Flynn, Jerry Suess and Snowgoose Developers, LLC, was
considered by this Court. Upon finding that the movants had established
sufficient grounds for intervention, their intervention was granted and
therefore, they became Respondents in the case.
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 proof upon the Petitioner
and the Respondents, I make the following Findings of Fact by a preponderance
of the evidence:
1. Petitioner
seeks an on-premises beer and wine permit and liquor by the drink license for Coco’s on the Beach, located at 34 Singleton Beach Place, Hilton Head Island, South Carolina.
2. Larry
Watkins, the owner of Coco’s, has been a resident of Hilton Head, South Carolina for over five years. The testimony established that he was of good moral
character. He also has not had a permit or license revoked within the last two
(2) years and notice of the application was lawfully posted both at the
location and in a newspaper of general circulation. Coco’s has seating for
approximately fifty-four patrons. Although there is no parking specifically at
the location, sufficient parking is available at the condominiums.
3. Coco’s has been in business for six months. Though the kitchen and serving area are
walled, there are no walls in the service area - it is an open air hut on a 55
x 38 foot deck. It is operated during the summer as a beach side restaurant
serving both the Hilton Head Resort condominiums and walk-up patrons from the
beach. The condominiums are connected to the restaurant by a 1400 foot
boardwalk, which extends past the restaurant to the beach.
If a beer and wine
permit and liquor by the drink license are issued, Mr. Watkins would like to
operate between the hours of 11 a.m. and 10 p.m. during the week and from 10
a.m. to 11 p.m. on Friday and Saturday.
4. Edward Flynn
testified that he has lived in Singleton Beach since 1996. Mr. Flynn owned ten
and a half acres adjacent to Coco’s, which he subdivided into lots. He is
currently trying to sell lots 9 and 10, both of which abut Coco’s. Over the
past five years, Mr. Flynn has been subjected to loud music, litter, drunken
people in his swimming pool and a broken window in his adjacent home, all
emanating from the patrons of the previous business. Mr. Flynn also experienced
problems with people parking on his private roadway and jumping over the fence
to get to the restaurant. He believes that if people are allowed to drink at Coco’s, they will be a nuisance to him and other property owners.
Eugene Laurich has lived
at 16 Collier Beach Rd., approximately 800 feet from Coco’s, for seven years.
He testified that in the past he has heard loud music and voices at night
coming from the location. He believes that patrons of the location leave
litter, such as cigarettes and cups, on the beach at night. Mr. Laurich does
not want Coco’s to receive a beer and wine permit or liquor by the drink
license due to the problems he believes it will create at and around his home.
5. As explained
below, in order to deny this permit and license, direct evidence of an adverse
impact on the community is necessary. Moreover, the
proposed location has been permitted to serve alcohol for at least the past
fifteen years while under different ownership. Therefore, the Protestant and
Respondents must show that the location is less suitable for the sale of beer,
wine or alcohol than during the prior period of licensure. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
Here, the evidence did
not establish that the proposed location is less suitable now than in the past.
There is no evidence that the previous permit/license was ever challenged or
that the licensee was disciplined for any infraction. Furthermore, though
there are residents in the area whose welfare should be considered, Mr. Watkins
testified that he intends to operate this business as restaurant rather than a
bar and that he intends to play music only through the two Bose speakers
currently in operation or from an acoustical guitarist playing “Jimmy Buffett”
style music. He further agreed to permanently close the fence at the rear of
his location to keep patrons from entering from the residential street. In
keeping with that stipulation, Petitioner agreed not to use the right of way on
Mr. Flynn’s property for food delivery, instead using only the Boardwalk.
Thus,
I find that the proposed location is suitable for an on-premise beer and wine
permit and liquor by the drink license. Nevertheless, the determination of
suitability is limited to the operation of the location in keeping with the
facts set forth above and the restrictions set forth below.
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.
S.C. Code Ann. § 61-2-260 (Supp. 2006) also grants the Administrative Law Court
the responsibilities to determine contested matters governing alcoholic
beverages, beer and wine.
2. S.C.
Code Ann. § 61-4-520 (Supp. 2006) sets forth the requirements for the issuance
of a beer and wine permit. Section 61-4-520(5) provides that the location of
the proposed place of business must be a proper one. Furthermore, Section 61-4-520(6)
provides that in making that determination, the Department, and thus the ALC, “may
consider, among other factors, as indications of unsuitable location, the
proximity to residences, schools, playgrounds, and churches.”
3. A
license for the sale and consumption of alcoholic beverages must not be granted
unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2006) are met.
Section 61-6-1820(1) provides that the 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.” In addition, a
license for the sale and consumption of alcoholic beverages must not be granted
unless an individual applicant is of good moral character or, if the applicant
is a corporation or association, it “has a reputation for peace and good order
in its community, and its principals are of good moral character.” S.C. Code
Ann. § 61-6-1820(2) (Supp. 2006). Section 61-6-1820(3) further provides that a
sale and consumption license shall not be granted unless the proposed location
meets the minimum distance requirements from churches, schools, or playgrounds
as forth in S.C. Code Ann. § 61-6-120 (Supp. 2006). Section 61-6-120(A) requires
that a location outside of a municipality licensed to sell liquor must be a
minimum of five hundred (500) feet from any church, school, or playground. The
distance is determined by following “the shortest route of an ordinary
pedestrian or vehicular travel along the public thoroughfare from the nearest
point of the grounds in use as part of such church, school or playground. . .
.”
4. 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 118 (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 the adverse effect the proposed
location will have on the community. Palmer v. S.C. ABC Comm’n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984). 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, 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 is a significant consideration. Smith
v. Pratt, 258 S.C. 504; Taylor v. Lewis, 261 S.C. 168.
“A liquor license or
permit may also be properly refused on the ground that the location of the
establishment would adversely affect the public interest, that the nature of
the neighborhood and of the premises is such that the establishment would be
detrimental to the welfare . . . of the inhabitants, or that the manner of
conducting the establishment would not be conducive to the general welfare of
the community.” 48 C.J.S. Intoxicating Liquors § 168 at 366 (2004).
Nevertheless, if the statutory criteria are satisfied, a permit or license
should not be denied upon these grounds without sufficient evidence of an
adverse impact on the community. Moreover, the fact that a person objects to
the issuance of a permit or license does not establish a sufficient reason by
itself to deny the application. See 48 C.J.S. Intoxicating Liquors § 166 (2004).
5. Permits and
licenses issued by this State for the sale of liquor, beer and wine are not
property rights. They are, rather, 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, may thus
place restrictions or conditions on these permits or licenses. See Feldman
v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). 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.
6. Based
upon the evidence presented, Petitioner meets the statutory requirements for
holding an on-premises beer and wine permit and liquor by the drink license at
the proposed location with the following restrictions.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit and liquor by
the drink license of Coco’s on the Beach be granted upon Petitioner entering
into a written agreement with the Department incorporating the restrictions set
forth below:
1. There shall be no live bands or
D.J. playing music on the premises. Only the system that is currently in use
or a non-amplified guitar player shall be allowed. Any noise that is noticeably
audible within any local residence with closed doors and windows after 9:00
p.m. 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 facie evidence of a violation of this provision.
2. The Petitioner shall only be
open between the hours of 10 a.m. and 10 p.m.
3. The Petitioner shall install a
gate on the fence between his property and Mr. Flynn’s and keep it locked at
all times. The Petitioner shall also cease use of the right of way on Mr.
Flynn’s property for food delivery and shall use the Boardwalk for such
supplies.
IT
IS FURTHER ORDERED that a violation of the above restrictions will be
considered a violation against the permit/license and may result in a fine,
suspension or revocation.
IT
IS FURTHER ORDERED that the Department resume processing Petitioner’s
application and, incorporating a written agreement of the above named
restrictions, issue an on-premise beer and wine permit and liquor by the drink
license to the Petitioner upon a satisfactory final inspection and payment of
the proper fees and costs.
AND IT IS SO
ORDERED.
____________________________________
Ralph
King Anderson III
Administrative
Law Judge
October 24, 2007
Columbia, South Carolina
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