SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005), § 61-2-260 (Supp. 2005), § 61-4-525 (Supp. 2005), § 61-6-1820 (Supp. 2005), and § 61-6-1825 (Supp. 2005) for a contested case hearing. The Baja Club and Sports Bar, Inc., d/b/a Baja Club and Sports Bar (Petitioner), seeks an on-premises beer and wine permit and a nonprofit private club liquor license for its location at 3094 Kirkley Road, Jefferson, South Carolina (location). Charles and Lisa Jolly (Protestants) filed protests to the application with the South Carolina Department of Revenue (Department). Because of the protests, the hearing was required.

A hearing in this matter was held before me on February 13, 2006 at the ALC in Columbia, South Carolina. Both parties and the Protestants appeared at the hearing. Evidence was introduced and testimony was taken. After carefully weighing all the evidence, I find that Petitioner’s request for an on-premises beer and wine permit and a nonprofit private club liquor license should be granted with restrictions.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and further taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of 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 a nonprofit private club liquor license for its location at 3094 Kirkley Road, Jefferson, South Carolina, which is located outside the city limits in Chesterfield County.

3. Jacky Steen (Applicant) is an officer of The Baja Club and Sports Bar, Inc. along with James Eason and his wife Lisa Steen. The Baja Club and Sports Bar, Inc. is a nonprofit corporation which is incorporated under the laws of South Carolina and is currently in good standing with the South Carolina Secretary of State. Articles of Incorporation and By-Laws have also been filed with the Secretary of State’s Office.

4. Mr. Steen is over the age of twenty-one (21). He is a legal resident of the State of South Carolina and has maintained his principal place of abode in the State of South Carolina for at least thirty (30) days prior to making this application. Mr. Steen is of good moral character, and neither Mr. Steen nor any other officer of The Baja Club and Sports Bar, Inc. has had a 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 proposed location will operate as private club called “Baja Club and Sports Bar,” which would only be open for use by its members and their bona fide guests. The proposed hours of operation will be Thursday through Saturday from 5:00 p.m. until 2:00 a.m. and Sunday from 1:00 p.m. until 10:00 p.m. Mr. Steen intends to occasionally serve hors devours at the location.

7. The private club will operate as a dance club and sports bar where its members can socialize, dance, view televised sporting events, and play pool. Mr. Steen intends to have dance competitions and pool tournaments at the location in the future. There is seating for approximately 80 people inside the location and the club has a capacity of approximately 150 people.

8. Live bands will perform inside the location on Friday and Saturday nights. On nights when a band is not performing, a disc jockey will play music inside the location. The club will also have karaoke. Mr. Steen has installed insulation in the walls and ceilings of the building to help soundproof it and has purchased a decibel meter to monitor music emanating from the location. There will not be any live music or other activities outside on the grounds of the location.

9. Several other improvements have been made to the location, including an eight (8) foot wooden privacy fence installed around the perimeter of the building and a large wooden deck attached to the back of the building.

10. The location has adequate parking. The parking area is also lighted at night.

11. Litter will be picked up daily at the club between the hours of 10:00 a.m. and 12:00 p.m.

12. The club rules are posted by the front door on the outside of the building.

13. No employees have been hired to work at the location yet. Mr. Steen intends to work there full-time.

14. Mr. Steen is a former police officer. He worked for the York County Police Department for three (3) years and for the Lancaster County Police Department for five (5) years.

15. This location was previously operated as a dance club licensed for the sale of alcoholic beverages under different ownership. Mr. Steen had no affiliation with the former operation of the location.

16. The location is in a rural area in Chesterfield County. There is a drag strip near the location and a large sandpit which operates twenty-four (24) hours a day approximately four-tenths (4/10) of a mile from the location. A retail liquor store is located next to the location and there is also a convenience store in close proximity. There are no schools, playgrounds, or churches within five hundred (500) feet of the location. There are some residences located in the vicinity, including the Protestants home, which is located across the road from the location.

17. Protestants Charles and Lisa Jolly appeared and testified at the hearing. They both expressed concerns about safety and loud music and noise emanating from the location. They have lived in their home near the location for thirteen (13) years. Both Mr. and Mrs. Jolly testified that they had experienced problems with noise coming from the location in the past while operating under the prior owner. Mr. Jolly also testified that fights occurred at the location in the past. Their two children and Mr. Jolly’s mother also reside with them. The Jollys are concerned that music and noise from the new location will disturb their sleep.

18. I find that the proposed location is suitable for the issuance of an on-premises beer and wine permit and a nonprofit private club liquor license upon compliance by Petitioner 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. 2005) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2005) sets forth the requirements for the issuance of a beer and wine permit.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2005) sets forth the requirements for the issuance of a liquor license. 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."

5. S.C. Code Ann. § 61-6-20(6) (Supp. 2005) 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.” Accordingly, only the members and guests of the nonprofit organization may consume alcoholic beverages upon the premises. Section

6. 23 S.C. Code Ann. Regs. 7-401.4 (Supp. 2005) sets forth additional requirements for nonprofit organizations seeking a liquor license. Regulation 7-401.4(D) (Supp. 2005) also 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, the proper Articles of Incorporation and by-laws filed with the South Carolina Secretary of State’s office. Therefore, The Baja Club and Sports Bar, Inc. meets the requirements of Regulation 7-401.4(D).

7. S.C. Code Ann. § 61-6-120 (Supp. 2005) provides that a liquor license shall not be issued to a place of business outside of a municipality if the place of business is located within five hundred feet of any church, school, or playground. 23 S.C. Code Ann. Regs. 7-303 further clarifies how distances from the location to schools, churches, and playgrounds are measured. There are no churches, schools or playgrounds within five hundred feet of the location.

8. 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).

9. 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, 417 S.E.2d 586 (1992); see also Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (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, 471 S.E.2d 154 (1996).

10. 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.

11. 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).

12. 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).

13. Furthermore, 23 S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2005) 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.

14. I find that the granting of this permit and license would not have an adverse impact on the surrounding community. The location is located in a rural area and there are few residences in close proximity to the location. There is also a convenience store licensed to sell beer and wine and a licensed retail liquor store located near the location.

Mr. Steen has made considerable improvements to the location to minimize noise, including the installation of soundproofing insulation in the walls and ceilings of the location and the construction of an eight (8) foot privacy fence around the perimeter of the location. He has also purchased a decibel meter to help him monitor the noise level. Furthermore, Mr. Steen, who intends to work at the location full-time, served as a police officer for a total of eight (8) years. Therefore, he is aware of potential problems that may arise out of the operation of an establishment that serves alcoholic beverages and has taken reasonable steps to prevent the occurrence of any noise or safety problems at the location.

Although the Protestants expressed objection to the location on the basis of noise and safety issues, those objections are based on problems that occurred at the location when it was previously operated by another person or entity. Accordingly, with the restrictions set forth below, Petitioner meets the statutory requirements for holding an on-premises beer and wine permit and private club liquor license at the location. However, failure to comply with the restrictions may be grounds for revocation of either the permit and license, or both.

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 private club liquor license by The Baja Club and Sports Bar, Inc., d/b/a Baja Club and Sports Bar, 3094 Kirkley Road, Jefferson, South Carolina is GRANTED upon Jacky Steen signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

RESTRICTIONS

1. Petitioner shall only allow members and their bona fide guests into the location.

2. Petitioner and its employees shall prohibit loitering and the consumption of beer, wine or liquor in the parking lot area of the proposed location.
3. Petitioner and its employees shall not allow excessive noise to emanate from the Baja Club and Sports Bar, which includes both the inside and outside of the location. Any noise that may be heard within any local residence with closed doors and windows shall be considered excessive. Furthermore, if live bands and/or disc jockeys perform at the location, all exterior doors must remain closed and the music must be minimized so it will not be heard inside the Jolly’s residence. 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.

4. No music, karaoke, or organized activities of any kind are permitted outside of the building, specifically including the deck.

5. Petitioner must maintain proper lighting around the exterior of the location and must ensure that no lights are focused directly toward any residences around the location.

6. Litter must be collected each day the location is open.

7. The location shall only operate Thursday through Saturday from 5:00 p.m. until 2:00 a.m. and on Sunday from 1:00 p.m. until 10:00 p.m.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the permit and license and 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

February 15, 2006

Columbia, South Carolina