SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005) for a contested case hearing. Petitioner New Generation, Inc., d/b/a Diamonds (New Generation) seeks an on-premises beer and wine permit and a non-profit private club minibottle license for a private club, known as Diamonds, located at 1203 Brickle Street in Orangeburg, South Carolina. Respondent South Carolina Department of Revenue (Department) would have granted the permit and license but for the protests filed by Danna Ackiss and Janet Ulmer regarding the suitability of the proposed location.

After timely notice to the parties and the protestants, a hearing of this case was held on March 13, 2006, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented concerning the suitability of the proposed location and upon the applicable law, I find that Petitioner's application for an on-premises beer and wine permit and non-profit private club minibottle license should be granted.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. On August 24, 2005, Satana O. Jones submitted an application on behalf of New Generation, Inc., to the Department for an on-premises beer and wine permit and a non-profit private club minibottle license for the premises located at 1203 Brickle Street in Orangeburg, South Carolina. This application and the Department's file on the application are hereby incorporated into the record by reference.

2. Petitioner New Generation, Inc., d/b/a Diamonds (New Generation), is a South Carolina non-profit corporation, incorporated on August 22, 2005, and currently in good standing with the South Carolina Secretary of State. Satana O. Jones is the incorporator and principal of New Generation, and serves as the president and registered agent of the corporation. The articles of incorporation for New Generation specify that the corporation is a non-profit, public benefit corporation, and its bylaws set forth requirements such that the corporation complies with 23 S.C. Code Ann. Regs. 7-401.4(A) - (F) (Supp. 2004).

3. Satana O. Jones is over twenty-one years of age and does not have any delinquent state or federal taxes. However, the record does indicate that Mr. Jones failed to file a South Carolina Income Tax Return for the periods of 2001, 2002, and 2003. Further, the South Carolina Law Enforcement Division (SLED) conducted a criminal background investigation of Mr. Jones that did not reveal any criminal arrests or convictions, and the record does not indicate that Mr. Jones has engaged in acts or conduct implying the absence of good moral character.

4. Notice of Petitioner's application was published in The Times and Democrat, a newspaper of general circulation in Orangeburg County, South Carolina, once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

5. The proposed location is situated at the back of a cul-de-sac off of St. Matthews Road outside of the city limits of Orangeburg. While there are no churches, schools, or playgrounds in the vicinity of the proposed location, there are several residences near the location, including one residence directly across Brickle Street from the location.

6. Ramon Rodriguez is the owner and landlord of the property where the location is situated. Mr. Rodriguez is also the manager of the Diamonds gentlemen’s club at the location and is responsible for the day-to-day operations of the club. Mr. Rodriguez owns Rack ‘em Up Sports Bar and Grill which is approximately five hundred (500) feet from the location. Rack ‘em Up Sports Bar and Grill has space for approximately seven hundred (700) to nine hundred (900) people while Diamonds has space for less than two hundred (200) and can only hold approximately seventy five (75) people comfortably.

7. Protestant Danna L. Ackiss lives directly across Brickle Street from the proposed location, and has experienced problems with both Rack ‘em Up and Diamonds. Mrs. Ackiss has made numerous calls to the Sheriff’s Department regarding activity at the two locations. Mrs. Ackiss has found litter in her yard and cars parked in her yard. Mrs. Ackiss has been blocked in her driveway by cars owned by patrons of Rack ‘em Up and Diamonds. She has made many complaints regarding noise and loud music emanating from these two businesses and the cars in the parking lot as well. Mrs. Ackiss has also witnessed several fights in the parking lots, and she has witnessed patrons urinating in her yard. Mrs. Ackiss cannot say for certain whether the noise and parking problems are a result of patrons of Diamonds or are a result of patrons of Rack ‘em Up.

8. Protestant Janet Ulmer owns commercial property with her husband on Brickle Street. Mrs. Ulmer has many of the same concerns as Mrs. Ackiss. She is also concerned about parking problems, problems with litter, and problems with noise.

CONCLUSIONS OF LAW

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

1. Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).

2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3. 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). 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, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

4. S.C. Code Ann. § 61-4-520 (Supp. 2004) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4- 520(6)-(7).

5. S.C. Code Ann. § 61-6-1820 (Supp. 2004) sets forth the basic criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

7. The determination of suitability of location is not necessarily a function solely of geography. Rather, it involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

8. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

9. However, without sufficient evidence of an adverse impact on the community, a permit application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).

10. In the case at hand, I find that the proposed location is suitable for Petitioner's private club. While this tribunal does not diminish or disregard the difficulties the protestants have had, it seems to me that most of these problems are not directly liked to this establishment.

However, Petitioner is reminded that [l]iquor licenses are neither contracts nor rights of property. They are mere permits, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do; and to be enjoyed only so long as the restrictions and conditions governing their continuance are complied with. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 56, 26 S.E.2d 22, 25 (1943). Accordingly, if Petitioner commits any violation of the statutes and regulations governing the sale of beer, wine, and alcoholic liquors, such a violation is grounds for the revocation or suspension of its permit and license. See S.C. Code Ann. §§ 61-2-140(E), 61-4-580, 61-6-1830 (Supp. 2004). Among such violations are permitting "lewd, immoral, or improper entertainment, conduct, or practices" and permitting "any act, the commission of which tends to create a public nuisance or which constitutes a crime under the laws of this State." S.C. Code Ann. § 61-4-580(4), (5) (Supp. 2004). These violations may be referred to the Department for enforcement action by two or more freeholders resident for more than six months in the community surrounding the licensed premises. S.C. Code Ann. § 61-4-590 (Supp. 2004). Further, even though a location has been found suitable for a particular permit or license at one time, the manner in which the establishment at that location is operated may render the location unsuitable for future operations of that character. Therefore, while this tribunal finds the location in question currently suitable for Petitioner's proposed operations, Petitioner is cautioned that, if the operations of its private club lead to a resumption of the problematic activities of prior establishments at the location, its permit and license may be placed in jeopardy.

10. Here, Petitioner meets all of the statutory and regulatory criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit and non-profit private club minibottle license, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner's private club, as currently operated, or that the issuance of the permit and license to Petitioner would have an adverse impact on the surrounding community. Therefore, I find that Petitioner's application for a beer and wine permit and minibottle license should be granted with restrictions.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that the Department shall GRANT Petitioner's application for an on-premises beer and wine permit and non-profit private club minibottle license for the premises located at 1203 Brickle Street in Orangeburg, South Carolina upon Satana O. Jones signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

RESTRICTIONS

1. Petitioner and its employees shall not allow excessive noise to emanate from the location or from the parking lot of the location (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 any applicable county noise ordinance shall be considered a violation of this provision.

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

3. Petitioner shall have at least one security guard outside the premises and at least one security guard inside the premises at all times while the location is open for business.

4. Petitioner’s hours of operation at the location shall be between 6:00 p.m. and 2:00 a.m. Monday through Friday, and between 1:00 p.m. and 12:00 a.m. on Saturday and Sunday.

5. Petitioner shall keep the location and the area surrounding the location reasonably free of any litter resulting from patrons of Petitioner’s business.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the on-premises beer and wine permit and the non-profit private club minibottle 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.

___________________________

John D. McLeod

Administrative Law Judge

March 20, 2006

Columbia, South Carolina