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:
Palmetto Inn, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Palmetto Inn, Inc.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
06-ALJ-17-0059-CC

APPEARANCES:
James H. Harrison, Esquire, for the Petitioner

Harry Hancock, Esquire, for the Respondent

Protestants: Kelly J. White, Robby White, Jay Reynolds
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-2-90 (Supp. 2005) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2005) for a contested case hearing. The Petitioner Palmetto Inn is a nonprofit organization. It seeks an on-premises beer and wine permit and nonprofit private liquor by the drink license. The Department of Revenue denied the application based on the receipt of a valid protest. A hearing was held on this case on May 19, 2006, at the offices of the Court in Columbia, South Carolina. Having carefully considered the evidence and testimony, I find and order that the requested license and permit be issued with the restrictions outlined below.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, 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 given to the Petitioner, Protestant and Respondent.

2. The proposed location for the Palmetto Inn is 623 Ninety Six Highway, Greenwood, South Carolina. The Petitioner seeks an on-premise beer and wine permit and nonprofit private club liquor by the drink license on behalf of a nonprofit organization.

3. The capacity of the club is 100--120 people, with parking available for approximately 70 cars. The parking area is well lit with several exterior lights. The club would be open seven days a week. It will not open before noon, and will close at 2:00 AM. The Petitioner has insulated the building to make it more sound proof. There will be music at the location, some live bands occasionally, but mainly karaoke. Ms. Newman, the incorporator and an officer of the Petitioner, testified that she has checked to verify that you cannot hear the music when you are outside the building.

4. The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2005) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years. Ms. Newman, an officer of the Petitioner, was arrested twenty years ago for DUI and sixteen years ago for an open container violation. I find that these arrests so remote as to not have any bearing on the case.

5. Notice of the application was also lawfully posted both at the location and in a newspaper of general circulation. Kelly J. White, Robby White, Jay Reynolds filed a timely protest objecting to the location. Several other Protestants also filed protests against this location, but did not attend the hearing. Their protests are deemed abandoned.

6. The proposed location is located in an area zoned commercial, but there are residences in the area also. There are other alcohol licensed locations nearby including two convenience stores and a location that has wine tastings periodically. The proposed location is at the corner of Highway 34 and Circle Drive. Highway 34, which is also known as the Ninety Six Highway, is a four lane road. There is a mobile home park across the highway, and two churches are less than ¼ mile away. Several of the Protestants, as well as Ms. Newman, live along Circle Drive. Ms. Newman has offered to close the curb cut from the location’s driveway onto Circle Drive, to install a privacy fence and plant trees and shrubbery along the fence.

7. The Protestants’ objections to the Petitioner’s permit and license are based upon the location of the Palmetto Inn. The Protestants assert that the proposed location may cause problems, including noise, traffic, driving under the influence, alcohol consumption, fights, and disorderly conduct. There are several small children and elderly people in the neighborhood. The Protestants are concerned about the safety of these people, since there have been problems in the past with intoxicated people driving down Circle Drive. Although the witnesses exhibited great credibility in their concerns for the safety of the community, I find that the central objection is a generalized opposition, not directed to any specific problems with Petitioner’s location. In addition, their concerns about possible traffic problems and driving under the influence are primarily conjectural and not related to anything specific at this particular location.

8. The Department of Revenue, which is the governmental body charged with regulating and enforcing violations concerning permits and licenses involving the sale of beer, wine or alcohol, did not object to the granting of a permit or license in this case. The applicant is fit and the proposed location is suitable for an on-premise beer and wine permit and nonprofit private club liquor by the drink license.

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 (Supp. 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. 2005) specifically 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. 2005) sets forth the requirements for the issuance of an on-premise beer and wine permit. Specifically, § 61‑4‑520(1) provides in part that to receive a beer and wine permit the Petitioner must show that "[t]he applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises are of good moral character."

3. In addition to the requirements set forth above, 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. 2005) are met. That section requires that the principals and applicants must not only be of good moral character, but they must also have a reputation for peace and good order. Additionally, S.C. Code Ann. § 61-6-1820 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. 2005).

4. S.C. Code Ann. 61-6-20(6) (Supp. 2005) establishes that a nonprofit organization is not open to the general public and only the members and guests of the club may consume alcoholic beverages upon the premises.

5. 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(1) (Supp. 2005) are met. 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.” (Emphasis added). 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.”

6. 23 S.C. Code Ann. Regs. 7-401.4(D) (Supp. 2005) 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, Ms. Newman is an organizing officer of the Palmetto Inn, with the proper Articles of Incorporation and by-laws filed with the South Carolina Secretary of State’s office. Furthermore, the by-laws properly set forth how the election of the Board of Directors, Officers, and Members are to take place annually. Therefore, the Palmetto Inn, Inc. meets the requirements of Regulation 7-401.4(D)

7. Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981). As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the Petitioner and the proposed business location for a license or permit using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984). The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations 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).

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 or license 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. Licenses and permits issued by the State for the sale of beer, wine, and liquor are

not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

10. It is relevant to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions, or whether the case is supported by facts. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984). There were no specific, concrete objections voiced by the Protestants. Their objections were speculative and addressed general concerns.

11. In addition, S.C. Code Ann. Regs. 7-200.1(I) (2005) authorizing the imposition of restrictions on licenses, 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.

12. I find that the Petitioner meets the statutory requirements for holding a beer and

wine permit and nonprofit private club liquor by the drink license as a nonprofit organization at the proposed location, and this location shall be permitted with the following restrictions on the permit and license as the applicant agreed at the hearing:

A. The Petitioner shall close the curb cut from the parking area of the location onto Circle Drive so that the only means of ingress and egress to or from the Palmetto Inn is onto Highway 34 (The Ninety Six Highway).

B. The Petitioner shall erect a privacy fence at least five (5) feet high on the side of the property nearest to Circle Drive

C. Shrubbery, including bushes and/or trees, shall be planted along the fence. This plant material shall be maintained by the Petitioner.


ORDER

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

ORDERED that the application of Palmetto Inn, for an on-premise beer and wine permit and nonprofit private club liquor by the drink license as a nonprofit organization, be issued upon payment of the required fees and costs by the Petitioner, subject to the following restrictions:

1. The Petitioner shall close the curb cut from the parking area of the location onto Circle Drive so that the only means of ingress and egress to or from the Palmetto Inn is onto Highway 34 (The Ninety Six Highway).

2. The Petitioner shall erect a privacy fence at least five (5’) feet high on the side of the property nearest to Circle Drive

3. Shrubbery, including bushes and/or trees, shall be planted along the fence. This plant material shall be maintained by the Petitioner.

AND IT IS SO ORDERED.

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

June 19, 2006

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court