SC Administrative Law Court Decisions

2. Petitioner seeks an on-premise beer and wine permit and restaurant sale and consumption license for En Fuego, located at 3137 Beltline Boulevard, Richland County, Columbia, South Carolina.

3. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2004) concerning the residency and age of the applicant are properly established. Furthermore, Nicholas Hoover and Earl Cooper, En Fuego's principals, have not had a permit or license revoked within the last two (2) years and are of sufficient moral character to receive a beer and wine permit and a sale and consumption license. Public notice of the application was also lawfully posted both at the location and in a newspaper of general circulation.

4. The proposed location is not within five hundred (500) feet of any church, school or playground.

5. The proposed location is in a commercial area that has a residential community behind the area. It was previously a family restaurant that was permitted to sell beer and wine. The Protestants do not object to the proposed location receiving a permit and license if it is operated as a family restaurant as it has been in the past. However, prior to this hearing, the Protestants believed that the applicants were seeking to open a dance club based on their observations of construction at the location. If that is the case, the Protestants object to the location receiving a permit and license because of:

a. The noise that would be generated by Petitioner’s business;

b. The potential adverse impact to the residential community; and

c. The proximity of the location to Edgewood Pentecostal Holiness Church.

Nicholas Hoover testified that he originally was constructing a dance floor and “disco” sound booth in the proposed location. However, he later modified the floor plan and has constructed the facility without a dance floor or sound booth. He now intends to operate the location solely as a restaurant.

Since the applicants intend to operate solely as a restaurant, the Protestants concerns about the proximity to the church and the general adverse impact to the residential community has been allayed. Nevertheless, Mr. Hoover does not rule out occasionally having live bands though he asserts that he will not have any bands that would produce loud music. There are residences in the vicinity of the proposed location. In fact, Mr. Campbell's home is approximately 120 feet in a straight path to the location.^[1] Therefore, if excessive noise emanates from the location, his residence and possibly others would be adversely effected. Accordingly, a restriction on this permit concerning excessive noise emanating from the location is warranted. Finally, construction on the location has not been fully completed and, therefore, the location will have to undergo a final inspection prior to opening.

Thus, I find that the proposed location is suitable for an on-premise beer and wine permit and sale and consumption license with the restrictions set forth below. These restrictions are necessary to protect the integrity of the community. Nevertheless, my determination that the location is suitable, even with the restrictions below, is based upon Petitioner’s representations of the character of the business. Operation of the proposed location in any other manner than that approved within this Final Order and Decision certainly presents a greater potential adverse impact on the community. Consequently, the proposed location is not approved for operation of any business other than described herein.

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 (Rev. 2005) 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. 2004) 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. 2004) sets forth the requirements for the issuance of a beer and wine permit.

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. 2004) 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.

4. S.C. Code Ann. § 61-6-20(2) (Supp. 2004) 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.

Furthermore, in order to meet the requirements of Section 61-6-20(2), the location must meet the requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2004).

5. 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. 2004).

6. 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, 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).

7. “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).

8. 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). I conclude that this proposed location would not adversely impact this community if the location is operated with strict adherence to the restrictions set forth below.

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 Court, 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, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2004) 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.

10. Petitioner meets the statutory requirements for an on-premise beer and wine permit and a restaurant sale and consumption license at this location with the following restrictions set forth below.

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 restaurant sale and consumption license of En Fuego, be granted, upon Petitioner entering into a written agreement with the Department incorporating the following restriction set forth below:

Petitioner shall not allow excessive noise to emanate from this location. For the purposes of this restriction, noise from the location shall include both the business and sound emanating from the parking area. Also, any noise that is distinctly audible to an ordinary person with closed doors and windows within the residences situated on Victory Street shall be considered excessive.

IT IS FURTHER ORDERED that a violation of the above restriction 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 restaurant sale and consumption 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

June 9, 2005

Columbia, South Carolina