ORDERS:
ORDER
This matter comes before the Administrative Law Judge Division (“Division”) pursuant to
S.C. Code Ann. §§ 61-2-260, 1-23-310, and 1-23-600 (Supp. 2002) for a contested case hearing. The
Treehouse Club, d/b/a The Treehouse Café, 206 Furman Hall Road, Greenville, SC, (“Applicant”)
seeks an on-premises beer and wine permit and a sale and consumption license for its location at 206
Furman Hall Road, Greenville, SC. Numerous protests concerning the application were filed with
the South Carolina Department of Revenue (“Department”). Because of the protests, the hearing
was required.
The hearing was held on January 13, 2003, at the offices of the Division at 1205 Pendleton
Street, Columbia, South Carolina. The Petitioner, Department, and Protestants appeared at the
hearing. Evidence was introduced and testimony was given. After carefully weighing all the
evidence, this tribunal finds that the on-premises beer and wine permit and the sale and consumption
license should be granted.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence
presented at the hearing and 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 all
the parties in a timely manner.
2.The Treehouse Club, d/b/a The Treehouse Café, is the applicant for an on-
premises beer and wine permit and sale and consumption license. The location is at 206 Furman
Hall Road, Greenville, South Carolina.
3.Linda L. Moore is the President of The Treehouse Club., d/b/a The Treehouse
Café. The permit is to be issued in the name of Linda L. Moore.
4. Linda L. Moore is thirty-four years old. She is a resident and citizen of the state
of South Carolina and has been for more than thirty days prior to the filing of the application.
Miss Moore is of good moral character and has never been convicted of a crime.
5.Notice of this application appeared at least once a week for three consecutive
weeks in The Greenville News, a newspaper of general circulation in the local area where the
Petitioner will operate.
6. Notice of the application was also given by displaying a sign for a minimum of
fifteen (15) days at the location.
7.The location is a non-profit social club, and is currently open on a “bring your
own” basis. The location has been previously licensed as a bar.
8.The Treehouse Club, d/b/a The Treehouse Café, represents itself as “Greenville’s
Only Gay Restaurant and Nightclub.”
8.There are no churches, schools, or playgrounds within three hundred feet of the
proposed location.
9.No evidence was presented at the hearing of any law enforcement problems
having occurred at or around the location.
10.Mike Fair, a member of the South Carolina Senate appeared at the hearing.
Senator Fair testified that he is opposed to granting the permit and license. Senator Fair testified
that he believes there are too many locations serving alcohol in the Greenville area, and that
homosexuality is a public health problem.
11.Archie Oglesby appeared at the hearing to oppose the application. Mr. Oglesby
owns a business next door. He testified that he is a recovering alcoholic and does not want a bar
next to his business. Mr. Oglesby further testified that there is a lot of trash around the location
and that parking was a problem.
12.Michael R. Griffin appeared at the hearing to oppose the application. Mr. Griffin
serves on the board of the county Substance Abuse Commission. He testified that he is opposed
to granting any additional licenses in the Greenville area.
13.Dr. Stan Craig, representing Choice Hills Baptist Church, appeared at the hearing.
He testified that he is opposed to granting any additional licenses. Dr. Craig further testified that
he is concerned about increased traffic on Furman Hall Road, and the morality of the people who
will patronize the location in question.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1
of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has
jurisdiction in this matter.
2. The sale of beer and wine is a lawful enterprise in South Carolina, as regulated
by the State.
3. S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for
the issuance of a beer and wine permit, provides:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or co-shareholder of the applicant, and each
agent, employee, and servant of the applicant to be employed on the licensed
premises are of good moral character.
(2) The retail applicant is a legal resident of the United States, has been a
legal resident of this State for at least thirty days before the date of application,
and has maintained his principal place of abode in the State for at least thirty days
before the date of application.
(3) The wholesale applicant is a legal resident of the United States and has
been a legal resident of this State for at least thirty days before the date of
application and has maintained his principal place of abode in the State for at least
thirty days before the date of application or has been licensed previously under
the laws of this State.
(4) The applicant, within two years before the date of application, has not
had revoked a beer or a wine permit issued to him.
(5) The applicant is twenty-one years of age or older.
(6) The location of the proposed place of business of the applicant is in the
opinion of the department a proper one.
(7) The department may consider, among other factors, as indications of
unsuitable location, the proximity to residences, S.C.hools, playgrounds, and
churches. This item does not apply to locations licensed before April 21, 1986.
(8) Notice of application has appeared at least once a week for three
consecutive weeks in a newspaper most likely to give notice to interested citizens
of the county, city, or community in which the applicant proposes to engage in
business. The department must determine which newspapers meet the
requirements of this section based on available circulation figures. However, if a
newspaper is published in the county and historically has been the newspaper
where the advertisements are published, the advertisements published in that
newspaper meet the requirements of this section. An applicant for a beer or wine
permit and an alcoholic liquor license may use the same advertisement for both if
the advertisement is approved by the department.
(9) Notice has been given by displaying a sign for fifteen days at the site
of the proposed business. The sign must:
(a) state the type of permit sought;
(b) state where an interested person may protest the
application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and
eight and one-half inches high;
(e) be posted and removed by an agent of the
division.
4.S.C. Code Ann. § 61-6-1820 (Supp. 2000), which sets forth the requirements for
the issuance of a sale and consumption (“minibottle”) license, provides in part:
The department may issue a license under subarticle 1 of this article upon finding:
(1) The 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.
(2) The applicant, if an individual, is of good moral character or, if a
corporation or association, has a reputation for peace and good order in its
community, and its principals are of good moral character.
(3) As to business establishments or locations established after November
7, 1962, Section 61-6-120 has been complied with.
(4) Notice of application has appeared at least once a week for three
consecutive weeks in a newspaper most likely to give notice to interested citizens
of the county, municipality, or community in which the applicant proposes to
engage in business. The department must determine which newspapers meet the
requirements of this section based on available circulation figures. However, if a
newspaper is published in the county and historically has been the newspaper
where the advertisements are published, the advertisements published in that
newspaper meet the requirements of this section. An applicant for a beer or wine
permit and an alcoholic liquor license may use the same advertisement for both if
it is approved by the department.
(5) Notice has been given by displaying a sign for fifteen days at the site
of the proposed business. The sign must:
(a) state the type of license sought;
(b) state where an interested person may protest the
application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and
eight and one-half inches high;
(e) be posted and removed by an agent of the
division.
(6) The applicant is twenty-one years of age or older.
(7) The applicant is a legal resident of the United States, has been a
resident of this State for at least thirty days before the date of application, and has
maintained his principal place of abode in this State for at least thirty days before
the date of application.
(8) The applicant has not been convicted of a felony within ten years of
the date of application.
5. As the trier of fact, an administrative law judge is authorized to determine the
fitness or suitability of the proposed business location of an applicant for a permit to sell beer
and wine using broad but not unbridled discretion. Byers v. South Carolina Alcoholic Beverage
Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Although “proper location” is
not statutorily defined, broad discretion is vested in the judge in determining the fitness or
suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118
(1981).
6.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 operation
of a 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).
7.It is also the fact finder’s responsibility to judge the demeanor and credibility of
witnesses and determine the relevance and weight of any testimony and evidence offered. 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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
8.In evaluating the issuance of a beer and wine permit, the proximity of the location
to a church, school, or playground is a proper ground on which the location may be found to be
unsuitable and the permit denied. Byers v. South Carolina Alcoholic Beverage Control
Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). In this case, the location is not within an
improper proximity to churches, schools, or playgrounds.
9.The judge may consider whether there have been any law enforcement problems
in the general area. Schudel v. South Carolina Alcoholic Beverage Control Comm’n, 276 S.C.
138, 276 S.E.2d 308 (1981). Absent substantial evidence of any law enforcement problems at
this location thus far, the potential for problems is not a basis on which to deny the application in
this case.
10.Unless there is sufficient evidence of an adverse impact on the community, the
application must be granted if the statutory criteria are satisfied. The fact that a Protestant
objects to the issuance of a permit is not 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).
11.I conclude that Petitioner has met all of the statutory requirements for holding an
off-premises beer and wine permit and sale and consumption license at the location. I further
conclude that the location is proper and suitable for granting the permit and license.
ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the South Carolina Department of Revenue must issue
an on-premises beer and wine permit and sale and consumption license in the name of Linda L.
Moore to the Treehouse Club, d/b/a The Treehouse Café, 206 Furman Hall Road, Greenville,
South Carolina, upon payment of the appropriate fees.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
March 11, 2003
Columbia, South Carolina |
