South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Garden City Marlin, Inc., d/b/a The Marlin vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Garden City Marlin, Inc., d/b/a The Marlin

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0358-CC

APPEARANCES:
For the Petitioner: Kenneth E. Allen, Esquire

For Respondent Department of Revenue: Dana R. Krajack, Esquire

For the Protestants: unrepresented
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before the Administrative Law Court (ALC or Court) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005), § 61-2-260 (Supp. 2004), § 61-4-520 (Supp. 2004), § 61-4-1820 (Supp. 2004) and § 61-4-525 (Supp. 2004). Garden City Marlin, Inc., d/b/a The Marlin (Petitioner), seeks an on-premises beer and wine permit and a sale and consumption (minibottle) license for its location at 614 Atlantic Avenue, Units A, B & C, Garden City, South Carolina (location). Charlotte Eason Jones and Thomas A. and Jeanne Moan (Protestants) filed protests to the application with the South Carolina Department of Revenue (Department). Because of the protests, the hearing was required.

An expedited hearing in this matter was held on September 27, 2005 at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and Protestants Charlotte Eason Jones and Thomas A. Moan appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for an on-premises beer and wine permit and minibottle license should be granted with restrictions.

FINDINGS OF FACT

Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, 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 timely given to all the parties and the Protestants.

2. Petitioner seeks an on-premises beer and wine permit and minibottle license for its location at 614 Atlantic Avenue, Units A, B, & C, Garden City, South Carolina.

3. James M. “Clinker” Miller is the sole owner of Garden City Marlin, Inc., a corporation currently in good standing with the South Carolina Secretary of State.

4. Mr. Miller is over the age of twenty-one. He is a legal resident of the State of South Carolina and has maintained his principal place of abode in this state for at least thirty (30) days prior to making this application. Mr. Miller is of good moral character and has not had an alcoholic permit or license revoked in the last two (2) years.

5.                  Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

6.                  The location is and will be a restaurant primarily and substantially engaged in the preparation and serving of meals. Its hours of operation will be from 11:00 a.m. to 12:00 a.m., Monday through Thursday, 11:00 a.m. to 1:00 a.m. on Friday, and from 11:00 a.m. until 12:00 a.m. on Saturday. The location will be closed on Sunday. Its menu will include items such as hamburgers, chicken fingers, wings, steak, other appetizers and side items. It seats approximately one hundred and fifty (150) people and there is a 28 foot by 28 foot dance floor inside.

7.                  Mr. Miller will manage the location and will serve as its primary cook. He will employ five (5) full-time bartenders and waitresses and the house band (which consists of four (4) members). The house band will perform inside the location on Friday and Saturday night beginning at approximately 9:00 p.m. There will not be any parties, functions, music (live or by speaker), food or drink service outside the location.

8.                  Prior to opening this business, Mr. Miller operated a similar establishment, The Blue Marlin, approximately three hundred (300) yards from this location. The Blue Marlin served a similar menu and was licensed to sell alcoholic beverages. The house band performed regularly at that location. Most of the patrons there were over fifty (50) years of age. Mr. Miller intends to draw the same age group at this location. He closed The Blue Marlin when he was unable to extend the lease there. No police incident reports were made at his prior location.

9.                  There are several businesses and a twenty-four hour gas station in close proximity to the location. J. Michael’s Bar and Grill, Murphy’s Law South (a bar), a beauty shop, and the Pink Pony (a strip club) share a parking lot with the location. Several are open late each evening. The Lighthouse Lounge (a bar) is located across Highway 17 from the location. Ms. Charlotte Eason Jones, one of the protestants, owns the building where the Lighthouse Lounge is located.

10.              Pirate Cove, a mobile home park, is located in part directly behind and in part directly to the left of the location. A ditch and a paved road separate the location from the mobile homes in Pirate Cove located directly behind it. The mobile homes to the left of the location are separated from it by a fence that runs along the border of the parking lot and a dirt road. Protestant Charlotte Eason Jones owns Pirate Cove. In her testimony, Ms. Eason expressed concerns about the location regarding trash, noise and parking issues which occurred while it was operated as a bar by previous owners.

11.              Mr. Thomas Moan lives in a mobile home in Pirate Cove directly behind the location. His primary concern and objection to the permit and license is the noise which came from it while previously leased to other lessees. He and his wife purchased their mobile home in Pirate Cove approximately five (5) years ago and it is their family home. During that time, they have made numerous complaints to local law enforcement regarding the noise level from the live bands that played there. Both Mr. Moan and his wife are senior citizens and are in poor health. As a result of the loud noise, they have had their sleep disrupted on numerous occasions and have been unable to live in a quiet and comfortable environment. Since Petitioner opened The Marlin, Mr. Moan has heard music coming from it approximately three to four times; however, it was not as loud as on previous occasions and was not as objectionable.

Mr. Moan has also experienced problems with trash in his yard in the past, most of which, if not all, came from patrons of the location when it was under previous ownership. He has not had any problems with trash being thrown in his yard since Petitioner opened for business. Petitioner has all the trash outside the location picked up each morning at approximately 7:00 a.m.

12.              The proposed location is suitable for an on-premises beer and wine permit and minibottle license with the restrictions set forth below.

 

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 (2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the Administrative Law Court the responsibility to determine contested matters governing alcoholic beverages, including beer, wine and liquor.

3. S.C. Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for the issuance of a beer and wine permit.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2004) sets forth the requirements for the issuance of a sale and consumption (minibottle) license. Section 61-6-1820(1) provides that an 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."

5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

7. 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 181 (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 any adverse effect the proposed location will have on the community. Palmer, supra. 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. Id.

8. Unless there is 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).

9. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are 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, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

10. 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.

 

11. With the restrictions set forth below, Petitioner meets the statutory requirements for holding an on-premises beer and wine permit and minibottle license at the location. The location is located in an area with several other bars, a gas station, and a strip club. Numerous other bars have also operated at this location in the past. Furthermore, the objections expressed by the Protestants are primarily based on problems that occurred at the location when it was previously operated by another person or entity.

The Petitioner has an excellent history of operating his previous club. There were no complaints from neighbors concerning noise or trash. However, I am concerned about the rights of the individuals to live in their homes in a safe and quiet environment. As a condition for keeping this permit and license, Petitioner must prevent any actions or activities at The Marlin which would or could deny his neighbors who live in Pirate Cove the right to live comfortably and without objectionable noise in the privacy of their homes.

Accordingly, I find that the location would not have an adverse impact on the surrounding community and is suitable for an on-premises beer and wine permit and a minibottle license as long as it conforms to the 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-premises beer and wine permit and a minibottle license by Garden City Marlin, Inc., d/b/a The Marlin, for its location at 614 Atlantic Avenue, Units A, B & C, Garden City, South Carolina is GRANTED upon James M. Miller, the sole owner of Garden City Marlin, Inc. signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

 

RESTRICTIONS

1.      Petitioner shall sound proof the physical structure of the location, including the back and side walls which border mobile homes, so that live music played inside the location will comply with the county noise ordinance.

2.      Furthermore, Petitioner and its employees shall not allow excessive noise to emanate from The Marlin. After 10:00 p.m., any noise that is noticeably audible within any local residence with closed doors and windows shall be considered excessive. 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.

3.      No music, including live music, or any activities sponsored, authorized or acquiesced to by Petitioner, is permitted on the outside of the location.

4.      Petitioner will ensure that litter around the outside of the location is collected daily.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the permit and license and, after notice to the Department and a hearing, may result in a fine, suspension, or revocation of the permit and license.

AND IT IS SO ORDERED.

 

__________________________________

Marvin F. Kittrell

Chief Administrative Law Judge

October 4, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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