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 |