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:
L& M Enterprise Solutions, LLC, d/b/a 360 Sports Grill vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
L& M Enterprise Solutions, LLC, d/b/a 360 Sports Grill

Respondents:
South Carolina Department of Revenue and The Scottish Inn (Mullett Columbia Corporation)
 
DOCKET NUMBER:
05-ALJ-17-0175-CC

APPEARANCES:
Heath P. Taylor, Esquire and Stanley Meyers, Esquire for Petitioner

Dana R. Krajack, Esquire, for Respondent SC Department Of Revenue

Kenneth E. Allen, Esquire for Respondent The Scottish Inn (Mullett Columbia Corporation

Protestant:
Richland County Sheriff’s Department, Captain Robert Plexico
 

ORDERS:

AMENDED FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-4-520 (Supp. 2004) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit and sale and consumption (mini-bottle) license for the location at 826 Bush River Road, Columbia, South Carolina. This matter is presently before the Court because of a protest by several concerned citizens, the Richland County Sheriff’s Department and The Scottish Inn. The Scottish Inn, Mullett Columbia Corporation, moved to intervene in this matter; that motion was granted by my order of August 4, 2005. After notice to the parties and Protestants, a hearing was conducted on August 24, 2005 in Columbia, South Carolina and concluded on September 1, 2005. At the hearing, the parties, their counsel and Protestant were present as indicated. Protestant David Hinson did not appear and his protest is deemed abandoned. A Final Order was issued on September 14, 2005. On September 21, 2005, the Department filed a motion to reconsider. I find and conclude that the license and permit requested by the Petitioner shall be granted subject to the restrictions specified below.

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

1.      The Petitioner seeks an on-premises beer and wine permit and mini-bottle license

for the location known as 360 Sports Grill, located at 826 Bush River Road, Columbia, South Carolina. This location is planned as a restaurant/sports bar, and has held a beer and wine permit in the past as a Chinese restaurant. The location is in a primarily commercial area with other licensed locations nearby.

2. The Respondent, South Carolina Department of Revenue, initially determined that the Petitioner met all statutory requirements. The Department determined, however, that the location was unsuitable. Upon further review, the Department had concerns about an undisclosed principal involved in the operation of the 360 Sports Grill. Although the Department elicited testimony that the purportedly undisclosed principal had lent money to the applicant without any supporting loan documents and did supply the video games found in the proposed location, the purportedly undisclosed principal is in the video game business. He had a prior business relationship with the principals of the applicant. Although the concerns of the Department are understandable, the involvement of the purportedly undisclosed principal can be explained without reaching the conclusion that he is, in fact, an undisclosed principal.

3. The parties stipulated that the only issues before this court were the suitability of the applicant and the location. All other statutory requirements, including measurements, were deemed met.

4. The State Law Enforcement Division’s criminal background investigation revealed some criminal convictions for the applicant’s principal owners. In spite of these convictions, the principals currently hold an alcohol license for a club in Sandy Run in Lexington County. There have been no violations at that location.

5. The Petitioner is a limited liability company in South Carolina.

6. Notice of the application appeared in The Columbia Star, a newspaper of general

circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted at the proposed location for fifteen days.

7. The proposed location will have seating for 100 people. The building has 6,000 square feet of space and a 400 square foot bar that takes up a large part lot of the interior space. There are several televisions throughout the interior, as well as video and arcade games. The restaurant will be open on during the week from 3:00 or 4:00 PM to 12:00 midnight on weekdays and open until 2:00 AM on Friday, Saturday and Sunday.

8.      The concerns of The Scottish Inn deal primarily with the crowds which the 360

Sports Grill attracts and the attendant noise. The manager of the Inn testified that the Inn has a clientele of construction workers who go to bed early and arise early. There is only a two foot strip of land between the proposed location and the Inn, and sound travels readily between the two.

9.      The Protestant for the Richland County Sheriff’s department testified that the

department has worked diligently to clean up the area in recent years. There have been numerous law enforcement problems in the two-block area that is within the jurisdiction of the Richland County Sheriff’s department and near the proposed location. In addition, the Richland County Sheriff’s department is concerned about the involvement of one of the principals in a previously licensed location known as Y2K on Broad River Road. The principal admitted that while he was involved as a “promoter” at Y2K, he was not in a managerial position. He did, however, testify in his deposition prior to trial that he had been in a management position. Although the Department was able to impeach this testimony that he had not been in a managerial position at Y2K, there seemed some confusion on the part of the principal as to what constituted a “managerial position.” In addition, his uncontroverted, and credible, testimony is that the 360 Sports Grill will not be a “club.”

10. There have been several “private parties” at this location during the pendency of this application. The applicant has required that the host of the party sign a lease for the location; the lease purportedly absolved the applicant of all responsibility for any violations at the location. While the presence of these “private parties” is a concern to this court, it is understandable that the applicant was trying to make ends meet during the time this application has been pending at the Department of Revenue. Although the applicant could have been more diligent in following the rules and regulations established by the Department for leasing the premises on a temporary basis, and in controlling the noise and crowds at these “private parties,” I find that the difficulties were limited to the circumstances of the private parties and will not recur in the normal course of business at a sports grill.

11. The licensed location next door to this proposed location is “Heartbreakers,” which is a “gentleman’s club.” I find the expressed opinion of the principals of the applicant to be very credible when they state that no one wants to come to a family restaurant next to a strip joint. The applicants initially wanted to open a barbeque restaurant in the location, but had to abandon those plans due to the presence of “Heartbreakers.”

12. Respondent Scottish Inn also presented evidence that there was no properly functioning sewer system at the location, which is required in order to obtain a restaurant license from DHEC.

13. I find the fact that the principals currently hold an alcohol license for a club in Sandy Run in Lexington County, and that there have been no violations at that location, a very significant point and evidence that the principals can follow the ABL laws.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

1. The South Carolina Administrative Law Court has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004).

2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).

4. It is also the fact finder’s responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered.

5. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions, generalities and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). The evidence showed that the noise complaints by the Inn corresponded with the private parties held at the location which the applicant had sub-leased to other individuals.

6. 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 alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

7. S.C. Code Ann. § 61-4-525 (Supp. 2004) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written protest.

8. 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).

9. 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 bona fide 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.

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.

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

10. After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine and sale and consumption (minibottle) license, upon satisfactory completion of any final inspections, including DHEC, subject to the restrictions set forth below. Although this court appreciates the concerns of the Protestant and The Scottish Inn, the unconverted fact is that the applicant has successfully operated a licensed location in Lexington County known as the 21 Grill since October 2002, and the expressed concerns about noise and crime are conjectural when reviewed in the context of a sports bar rather than the private parties which have been held there.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the South Carolina Department of Revenue grant the Petitioner’s application for an on-premises beer and wine permit and sale and consumption (minibottle) license upon satisfactory completion of all inspections and payment of any and all necessary fees, subject to the following restrictions which are hereby made a part of the license and permit and shall be enforced by the Department of Revenue. Restrictions:

1.                            The Petitioner shall hire a security guard to police the parking lot of the location. This guard shall be on duty whenever the location is open.

2.                            The location shall close at 1:00 AM daily.

3.                            No live bands shall perform at the location, either inside or outside.

4.                            The Petitioner shall prevent and prohibit any loitering on the premises and grounds.

5.                            DHEC must inspect the restaurant and it must receive an “A” rating prior to opening.

6.                            The Petitioner must notify DOR and SLED of any new business partners within thirty days of their involvement in the business. This provision includes any person having any day to day managerial responsibilities at the business or any additional principals or owners in the LLC.

 

 

AND IT IS SO ORDERED.

 

 

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

 

October 24, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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