ORDERS:
FINAL ORDER AND DECISION
STATE OF SOUTH CAROLINA
STATE OF SOUTH CAROLINA
ADMINISTRATIVE LAW COURT
Inlet Social Club, d/b/a A’s Club, 591 )
Carson Ave., Murrells Inlet, SC,)Docket No. 04-ALJ-17-0297-CC
)
Petitioner,)
)
) FINAL ORDER AND DECISION
vs.)
)
South Carolina Department of Revenue,) )
Respondent.)
____________________________________)
APPEARANCES: For the Petitioner: Kenneth E. Allen, Esquire
For the Protestant: Joseph E. Clardy, Pro Se
For the Department of Revenue: Excused
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. 2003) and S.C. Code Ann. § 1-23-310 et seq. (1986 &
Supp. 2003) for a contested case hearing. The Petitioner seeks a nonprofit private club
minibottle license and an on-premise beer and wine permit. Respondent Department of Revenue
(Department) made a Motion to be Excused stating that but for the protest it received, these
applications would have been granted. Finding “good cause,” the Department’s motion was
granted by my Order dated September 23, 2004. A hearing was held on November 3, 2004, at
the offices of the 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 persuasion by the Petitioner and
the Protestant, 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 Protestant, and the Department.
2.The Petitioner seeks a nonprofit private club minibottle sale and consumption
license and an on-premise beer and wine permit for Inlet Social Club, d/b/a A's Club, located at
591 Carson Avenue, Murrell's Inlet, South Carolina. Inlet Social Club is incorporated under the
laws of South Carolina as a nonprofit corporation. Lester Sitzler, Jr., and Dotty G. Grice are the
original organizing members of Inlet Social Club as set forth in the club's by-laws. Mr. Sitzler is
a local business developer of multi-family condominiums in the Myrtle Beach area. He resides
about five (5) miles from the proposed location of the club. Ms. Grice will be the club's general
manager and will handle day-to-day operations. Mr. Sitzler testified that the club will originally
have approximately fifteen (15) members.
The main purpose of this organization is to act as a
social club for members "forty and over" and their families. Mr. Sitzler also set forth that
wedding receptions, baby showers and birthday parties may be held at the location for its
members and guests. The club will also have overnight rooms that could be used by members,
guests and other business contacts. However, Mr. Sitzler specifically asserted that bands would
not be allowed at the location during the normal course of business Finally, Mr. Sitzler testified
that his hours of operation will be:
a.5:00 p.m. to 11:00 p.m., Monday through Thursday; and
b.Noon to Midnight on the week-ends.
3.The Inlet Social Club will be situated outside the city limits in Georgetown
County, South Carolina. Carson Avenue is a short connector avenue between U.S. Highway 17
By-Pass and U.S. Highway 17 Business. The general area is mixed residential and business with
a nearby garden center and landscaping/pool business, a restaurant that is licensed and permitted
for the sale of beer, wine and liquor on-premises (Fisherman's Market Restaurant), and a Citgo
that sells beer and wine off-premises across U.S. Highway 17 Business.
4. The qualifications set forth in S. C. Code Ann. § 61-4-520 (Supp. 2003)
concerning the residency and age of the officers of A's Club are properly established.
Furthermore, the officers have not had a permit or license revoked within the last two years and
notice of the application was lawfully posted both at the location and in a newspaper of general
circulation.
5.There are no schools, churches, or playgrounds located within 500 feet of this
location.
6.The Petitioner’s principals and applicants do not have criminal records and are of
sufficient moral character to receive a nonprofit private club minibottle license and beer and
wine permit.
7.Joseph E. Clardy is the sole Protestant again the issuance of this permit and
license. He resides diagonally across from the location on Carson Avenue approximately one
hundred (100) feet away. His main concern regarding this club is the noise that may be
generated by the location and its patrons. Mr. Clardy set forth that most of the businesses on
Carson Avenue are "day" businesses that do not produce noise during the evening and nighttime,
with the exception of the Fisherman's Market Restaurant. Although the restaurant can have long
lines of waiting patrons outside during the summer as well as live entertainment, this is during
regular mealtimes. The noise concerns he expressed were:
·Music
·Cars (car alarms and squealing tires)
·Loud Motorcycles
·Patrons outside the location
More specifically, Mr. Clardy expressed his concern that this private club would be a haven for
motorcyclists coming and going well into the evening hours. However, the stipulations set forth
below by Mr. Sitzler, when incorporated into this permit/license, will allay those concerns.
STIPULATIONS
Mr. Sitzler specified at the hearing that he would abide by the following stipulations if
granted a permit and license for this nonprofit club:
NO MOTORCYLCES will be allowed at the location.
The Inlet Social Club will stay open NO LATER than MIDNIGHT
on any given night.
NO BANDS will play at the location during the normal course of
business, with the exception of special events.
NO EXCESS NOISE will be heard emanating from the location
after 9:00 p.m. inside the nearby residences on any given night.
Therefore, I find that the proposed location is suitable for a nonprofit private club
minibottle license and an on-premise beer and wine permit with the stipulations set forth above.
Adherence to those stipulations is necessary to protect the current integrity of the nearby
residents. Consequently, if the Petitioner’s club is not operated in accordance to those
stipulations, suitability of the location would be questionable and the proposed location would
need to be reevaluated to determine if it should continue to be permitted/licensed.
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. S.C. Code Ann. §
61-2-260 (Supp. 2003) 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. 2003) sets forth the requirements for the
issuance of a beer and wine permit.
3.In addition to the requirements set forth above, 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(2) (Supp. 2003) are met. That section requires that the principals and applicants
must not only be of good moral character, but the business must also have a reputation for peace
and good order. Additionally, Section 61-6-1820(3) 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. 2003). Section
61-6-120 also 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.S.C. Code Ann.§ 61-6-20(6) (Supp. 2003) establishes that a nonprofit
organization is not open to the general public and only the members and guests of the nonprofit
organization may consume alcoholic beverages upon the premises.
5. 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(1) (Supp. 2003) 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.” (Emphasis added). S.C. Code Ann. § 61-6-20(6) (Supp. 2003) defines a “nonprofit
organization” as “an organization not open to the general public, but with a limited membership
and established for social, benevolent, patriotic, recreational, or fraternal purposes.”
6.23 S.C. Code Ann. Regs. 7-401.4(D) (eff. 6/27/03) requires that “[t]he affairs and
management of such nonprofit organization shall be conducted by a board of directors, executive
committee or similar governing body chosen by the members at a regular meeting held at some
periodic interval but at least on an annual basis.” Here, Mr. Sitzler is one of two organizing
officers of the Inlet Social Club, with the proper Articles of Incorporation and by-laws filed with
the South Carolina Secretary of States' office. Furthermore, the by-laws properly set forth how
the election of the Board of Directors, Officers, and Members are to take place annually.
Therefore, the Inlet Social Club meets the requirements of Regulation 7-401.4(D)
7.Although "proper location" is not statutorily defined, broad discretion is vested in
the trier of fact in determining 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 a location is
not necessarily a function solely of geography. It involves an infinite variety of considerations
related to the nature and operations 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).
8.In considering the suitability of a location, 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). The fact that the establishment was licensed at the
time of this application has bearing on the consideration of suitability. Also, the fact that there is
a licensed establishment adjacent to the location has bearing on the consideration of suitability.
9.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 Judge, as the tribunal authorized to grant the issuance
of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman
v. S.C. Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943). Furthermore, 23 S.C. Code Ann.
Regs. 7-200.1(I) (eff. 6/27/03), authorizing the imposition of restrictions to permits, provides:
Stipulations. 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.
As set forth above, if the Petitioner’s private club is not operated in accordance to those
stipulations set out and agreed to, suitability of the location would be questionable and the
proposed location would need to be reevaluated to determine if it should continue to be
permitted/licensed.
10.The Petitioner meets the statutory requirements for holding a nonprofit private
club minibottle license and an on-premise beer and wine permit at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the nonprofit private club minibottle license and on-premise beer
and wine permit for Inlet Social Club, d/b/a A's Club, be granted upon Mr. Sitzler signing a
written Agreement with the South Carolina Department of Revenue agreeing to the stipulations
set forth above and the payment of the proper fees and costs.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
January 6, 2005
Columbia, South Carolina |
