SC Administrative Law Court Decisions

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. 2007) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2007) for a contested case hearing. Petitioner is seeking an on-premises beer and wine permit nonprofit private club liquor by the drink license for Mustang Sally’s. After proper notice, a hearing was held on December 3, 2008 at the offices of the ALC 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, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner Deborah McCormick seeks an on-premise beer and wine permit and private club liquor by the drink license for Mustang Sally’s, located at 3090 Kirkley Road, Jefferson, South Carolina.

2. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2007) concerning the residency and age of Petitioner were properly established. Petitioner 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. Furthermore, the proposed location is not unreasonably close to any church, school, or playground.

3. Petitioner currently owns McCormick Grocery & Grill, an ABC store, and a feed store, all of which are on located on the same tract of land as the proposed location. The proposed location has been licensed for the on-premises sale of alcohol twice in the past. The ABC store holds a retail liquor license and McCormick Grocery & Grill is licensed to sell beer and wine for off-premises consumption.

Petitioner proposes to operate a private club between the hours of 4 p.m. and 2 a.m. Thursday through Saturday and between the hours of 1 p.m. and 11 p.m. on Sunday. Patrons must be twenty-one years old to enter the proposed location. They will use the outside of the proposed location for horseshoes and cookouts during the daylight hours. However, there will be no outside activities after dark. Entertainment will be in the form of a karaoke machine which will only be used inside of the location with the doors closed. Furthermore, Petitioner has agreed to all of the restrictions as set forth below.

4. Charles Jolly protested the issuance of this license. Mr. Jolly lives approximately 200 feet from the proposed location. His main concern was the noise that emanated from the Baja Club, the last business to be operated at the proposed location. He testified that the noise from the Baja Club was excessive and lasted past the approved hours of operation, keeping his family awake, and that trash was thrown in his yard. However, he testified that when Mrs. McCormick ran the location prior to the Baja Club he did not have the same problems with noise or litter. He further testified that the main problem with noise at the Baja Club came from live bands, which will not be a part of the entertainment at Mustang Sally’s. Mr. Jolly concluded by stating that if he could not hear the noise, he would not have a problem with the licensing of the location.

Therefore, if the location is operated as the Petitioner testified, with no outside entertainment after dark, karaoke only on the inside with the doors closed, and no live bands, I find that the proposed location is suitable for an on-premise beer and wine permit and private club liquor by the drink 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. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. Generally, no license or permit may be issued unless the applicant is the owner of the business seeking the permit or license and “the person and all principals are of good moral character.” S.C. Code Ann § 61-2-100 (Supp. 2007). S.C. Code Ann. § 61-4-520 (Supp. 2006) also 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. In addition, 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. 2007) 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.” Section 61-6-1820(2) further provides that 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. 2007).

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). Historically, “[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). 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.

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). In instances in which the location has been previously been permitted, the Court’s have reviewed the suitability determination from the context of whether the record makes “any showing that the location is [now] any less suitable” than it was during the prior years of operation. Taylor v. Lewis, 261 S.C. at 171.

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 private club liquor by the drink license of Mustang Sally’s be granted upon Petitioner entering into a written agreement, with the Department incorporating the restrictions set forth below:

1. Petitioner shall only allow members and their bona fide guests into the location.

2. Petitioner and its employees shall prohibit loitering and the consumption of beer, wine or liquor in the parking lot area of the proposed location.

3. Petitioner and its employees shall not allow excessive noise to emanate from Mustang Sally’s, which includes both the inside and outside of the location. Any noise that may be heard within any local residence with closed doors and windows shall be considered excessive. Furthermore, no live bands shall be permitted to play on the premises. 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.

4. No music or organized activities of any kind are permitted outside of the building after dark, specifically including the deck.

5. Petitioner must maintain proper lighting around the exterior of the location and must ensure that no lights are focused directly toward any residences around the location.

6. Litter must be collected each day the location is open.

7. The location shall only operate Thursday through Saturday from 4:00 p.m. until 2:00 a.m. and on Sunday from 1:00 p.m. until 11:00 p.m.

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 issue an on-premise beer and wine permit and private club 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

December 17, 2008

Columbia, South Carolina