ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. §
61-2-90 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a
contested case hearing. The Petitioner, Boyd Jones, seeks an on-premise beer and wine permit
and sale and consumption license for The Locker Room at 6201 Two Notch Road, Columbia,
South Carolina. A hearing was held before me on October 12, 2004, at the offices of the
Administrative Law Court (ALC or Court) in Columbia, South Carolina.
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 parties and the
Protestants, I make the following Findings of Fact by a preponderance of the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Protestants, and the Department of Revenue (Department).
2.The Petitioner seeks an on-premise beer and wine permit and sale and
consumption license for The Locker Room, located at 6201 Two Notch Road, Columbia, South
Carolina. Mr. Jones set forth that he plans to run this location as a sports bar that serves food.
However, he also testified that the nature of this location may change in the future.
3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2003)
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 (2) years and notice of the
application was lawfully posted both at the location and in a newspaper of general circulation.
Finally, Boyd Jones, the proposed owner of the location, has no criminal record.
4.The proposed location is not unreasonably close to any school or playground.
However, this location will be in the direct vicinity of two other night clubs on Two Notch Road:
Studio 54 and Lennox VIP.
5.Upon processing the Petitioner's application, the Department of Revenue
(Department) had two concerns that resulted in this permit and license being denied. The first
concern was with the location's food service. At the time Mr. Jones filed his application, the
location did not have a "Grade A" food service license or a menu. However, prior to the hearing
into this matter, the Petitioner obtained his “Grade A” license and the Department agreed to re-inspect the location after it begins operating should this permit and license be granted.
The Department's second concern was the availability of parking spaces for The Locker
Room's patrons. Only twelve (12) parking spaces are at the location. However, Mr. Jones has
two written parking agreements that would provide additional spaces. Those agreements provide
for:
a.Thirty (30) spaces at a paved car lot located approximately seven blocks (or two
miles) from the location and an additional twenty-five (25) spaces on a grassy
area around the car lot. The Petitioner plans to use valet parking from The Locker
Room to the car lot and he also plans to have security at the lot. This lot would
be available from 7:00 p.m. to 3:30 a.m.
b.Twelve (12) to fifteen (15) spaces at Jean's Auto Repair, located to the side of
The Locker Room from 6:00 p.m. to 3:30 a.m.
6.Protestant L.A. Garrett is the general manager of Lennox VIP, located adjacent to
the location. He explained that his business had problems with this location, as it was previously
run. Patrons would park in his lot and would not cooperate with his security. He also believes
that The Locker Room will be under the same management that ran the location when it was
previously open.
Captain E.N. Mauney of the Richland County Sheriff's Department, also protested this
location as the Chief of the northeast region. She established that this location was previously
run as a sex club with questionable activities taking place on the premises. In fact, a previous
application for the location was denied. Additionally, Captain Mauney clarified that the parking
situation in the area was problematic and that the saturation of "night clubs" in the vicinity has
created a burden on law enforcement.
7.I find that the location does not have adequate parking, will create an undue
burden upon law enforcement and result in an overall adverse impact on the community. Mr.
Jones intends to provide valet parking for his customers when parking is unavailable in the
spaces at his location and Jean's Auto Repair. Nevertheless, that valet parking will be to an area
about two miles from the location. That distance is simply an impracticable means of providing
for parking especially in light of the nature of the area as described by Mr. Garrett. Moreover,
though the Petitioner apparently has parking agreements, the evidence did not establish that
those agreements could not be cancelled at any time or that the parties entering the agreements
had the authority to bind the owners of the property. The unrefuted evidence also suggests that
this location will be operated under the same management that previously improperly ran the
location. Accordingly, I find that the Petitioner’s proposed location is not suitable for an on-premise beer and wine permit and restaurant sale and consumption license.
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. 2003) grants jurisdiction to the Administrative
Law Court to hear contested cases under the Administrative Procedures Act. Additionally, S.C.
Code Ann. § 61-2-260 (Supp. 2003) grants the Administrative Law Court the responsibilities to
determine contested matters governing alcoholic beverages, beer and wine.
2.A beer and wine permit is neither a contract nor a property right. It is, rather, a
privilege granted in the exercise of the State's police power “to do what otherwise would be
unlawful to do. . . .” Feldman v. South Carolina Tax Comm’n, 203 S.C. 49, 26 S.E. 2d 22
(1943). S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2003) set forth the requirements for
the issuance of a beer and wine permit. In particular, Section 61-4-520(6) vests the
Administrative Law Court, as the trier of fact, with the authority to determine if the proposed
place of the applicant’s business is a “proper” one. Although “proper location” is not statutorily
defined, in making that determination, the Administrative Law Court may consider any evidence
that is adverse to the community. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In
other words, the Court’s 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 on the community” within which it is to be
located. Kearney at 337. Additionally, it is 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. 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).
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. 2003) are met. That section
requires that a mini-bottle license be granted only to a bonafide business engaged in either the
business of primarily and substantially preparing and serving meals or furnishing lodging.
Furthermore, not only must the principals and applicant be of good moral character but the
business must also have a reputation for peace and good order.
S.C. Code Ann. § 61-6-20(2) (Supp. 2003) sets forth:
‘Bona fide engaged primarily and substantially in the preparation and serving of
meals’ means a business which has been issued a Class A restaurant license prior
to issuance of a license under Article 5 of this chapter, and in addition provides
facilities for seating not less than forty persons simultaneously at tables for the
service of meals.
In order to meet the requirements of Section 61-6-20(2), the location must also meet the
requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003). Additionally, Section 61-6-1820 also 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 set
forth in S.C. Code Ann. § 61-6-120 (Supp. 2003).
4.“A liquor license or permit may properly be 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 § 121 at 501
(1981). Nevertheless, 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 by itself to deny the application. See
45 Am. Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119
(1981).
5.I find that the Petitioner failed to meet the requirements for holding an on-premise
beer and wine permit and restaurant sale and consumption license at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law:
IT IS HEREBY ORDERED that the Petitioner's application for an on-premise beer and
wine permit and restaurant sale and consumption license be denied.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
December 7, 2004
Columbia, South Carolina |
