ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and
S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) on the application of Petitioner J-Moe
Enterprises, LLC, for an on-premises beer and wine permit and a restaurant minibottle license for
an establishment located at 7101 D Parklane Road in Columbia, South Carolina. On February 12,
2003, Respondent South Carolina Department of Revenue (Department) denied Petitioner’s
application based upon protests in opposition to the application filed by eight nearby business
owners and the Richland County Sheriff’s Office and upon Petitioner’s failure to establish that its
business is primarily and substantially engaged in the preparation and serving of meals. On March
5, 2003, Protestant Columbia Place mall moved for leave to intervene in this matter in opposition
to Petitioner’s application. This motion was granted by an Order dated March 27, 2003.
After timely notice to the parties and the protestants, a hearing of this case was held on April
4, 2003, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the
evidence presented regarding the nature of Petitioner’s operations and the suitability of the proposed
location, I find that Petitioner’s application for an on-premises beer and wine permit and a restaurant
minibottle license must be denied.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, 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.In October 2002, Anthony Moses, Ella Mae Tindal, and Peggy Washington, on behalf
of Petitioner J-Moe Enterprises, LLC, submitted an application to the Department for an on-premises
beer and wine permit and a restaurant minibottle license for the premises located at 7101 D Parklane
Road, Columbia, South Carolina. This application is incorporated into the record by reference.
2.The proposed location is situated in a heavily commercial area of the City of
Columbia and occupies a space formerly operated as a Godfather’s Pizza franchised restaurant.
There are a number of businesses, including at least two restaurants/bars, in the immediate vicinity
of the proposed location. These businesses include a large shopping center (Columbia Place mall),
a number of restaurants (Substation II, Hardee’s, McDonald’s, Day Break Restaurant, Schlotzsky’s
Deli), two restaurants/bars (Icy’s Sports Bar, Dummy’s), several retail establishments (Marshall’s,
Party City, GG’s Flowers), a hotel (Days Inn), and several other businesses (First Citizen’s Bank,
Cash Loans, Capital City Solutions). There are no churches, schools, playgrounds, or residences
in close proximity to the proposed location.
3. At the time the application was submitted, J-Moe Enterprises, LLC, was owned in
equal parts by Mr. Moses, Ms. Tindal, and Ms. Washington, who served, respectively, as the
president, vice president, and secretary of J-Moe Enterprises. However, because Ms. Washington
and Mr. Moses were subject to certain tax liabilities, J-Moe Enterprises submitted a Corporate
Officer Removal Letter to the Department on February 7, 2003. This letter removed Ms.
Washington and Mr. Moses as corporate officers from J-Moe Enterprises, thereby relieving them
of their duties and responsibilities related to the business and leaving Ms. Tindal with sole
responsibility for J-Moe Enterprises.
Although they have no formal ownership interest in the
company, two other individuals, Jonathan Moses and Scott Knight, contributed to the initial
capitalization of J-Moe Enterprises and have a significant financial interest in J-Moe Enterprises.
The original investors in J-Moe Enterprises collectively raised over $100,000 for the initial
capitalization of the company.
4.Petitioner J-Moe Enterprises intends to operate the proposed location as a restaurant
and bar to be known as Bentley’s.
In order to prepare the location for business, Petitioner expended
approximately $100,000 to renovate, refurbish, and reequip the 4800-square-foot restaurant. As
currently designed, the location includes a bar, a kitchen, a seating area, a stage on which to host
concerts, comedy shows, and other performances, and sufficient space and facilities in which to host
banquets and private parties. The location has a valid zoning permit, business license, and has been
inspected by the South Carolina Department of Health and Environmental Control and received a
Grade A rating. At Bentley’s, Petitioner plans to offer meals, consisting primarily of hot dogs,
hamburgers, french fries, and chicken wings, and to serve both alcoholic and non-alcoholic
beverages.
5.Scott Knight holds and exercises daily management responsibilities for Bentley’s and
manages the finances of J-Moe Enterprises.
Prior to his involvement with J-Moe Enterprises, Mr.
Knight served as a manager at Pure Passions for approximately six months in early 2002. Now
closed, Pure Passions was a nightclub on Two Notch Road in Columbia that offered adult
entertainment. However, the owner of Pure Passions, Ken Wood, is not associated with Bentley’s,
nor did any of the owners and incorporators of J-Moe Enterprises, other than Mr. Knight, have any
association with Pure Passions.
6.Bentley’s is not currently open for business. However, it did conduct business for
approximately three weeks between late-January 2003 and late-February 2003. During the brief
time Bentley’s was open, its operations caused significant disturbances to surrounding businesses
and created significant law enforcement problems, including two shooting incidents.
Two local businesses particularly affected by Bentley’s operations are the Days Inn hotel and
Columbia Place mall. The volume of the music played at Bentley’s has caused guests at the nearby
Days Inn to complain to hotel management about the noise, and, in some instances, to check-out
early from the hotel. Further, the shooting incidents related to Bentley’s have put Days Inn’s
contract to house military personnel in jeopardy. Columbia Place mall has experienced frequent
parking problems caused by Bentley’s patrons. During the time Bentley’s was open, Columbia
Place security officers towed at least four vehicles from the mall parking lot and were involved in
several confrontations with Bentley’s patrons regarding parking in the mall lot.
Activities at and related to Bentley’s have not only disturbed nearby businesses, but have
also created law enforcement problems. Captain Nell Mauney of the Richland County Sheriff’s
Office testified that, during the time Bentley’s was open, the sheriff’s office responded to seven
incidents related to the establishment and its patrons. These incidents included a drug arrest, noise
complaints, and two shooting incidents. The first of these shooting incidents stemmed from a fight
inside the club and resulted in thirty to forty shots being fired from a vehicle traveling on Parklane
Road. The second incident involved several shots being fired from Bentley’s parking lot, directly
in front of the entrance to the club. Captain Mauney further testified that the number of calls for
service related to Bentley’s was unusually high for such a period of time and that the other
restaurants/bars in the area only infrequently generate calls for service.
7.Further, Steve Bradley, a security officer with Best Security, Inc., testified to his
experiences in providing security for Bentley’s between January 24, 2003, and February 6, 2003.
Mr. Bradley, through Best Security, provided security for Pure Passions while it was open, and was
the site supervisor for security at Bentley’s for two weeks, until Best Security canceled its contract
with Bentley’s for non-payment of approximately $1600. While at Bentley’s, Mr. Bradley observed
the first shooting incident, which originated as a fight within the club, and witnessed adult
entertainment being provided at the club and illegal drugs being used by club patrons.
8.The proposed location is not per se unsuitable for an on-premises beer and wine
permit or a restaurant minibottle license. However, the number and severity of the problems
associated with Petitioner’s operations during the brief period Bentley’s was open have rendered the
location unsuitable for such operations under a beer and wine permit and minibottle license. In
reaching this conclusion, this tribunal is very much mindful of and sensitive to the racial undertones
of this case. To state the obvious for the benefit of both those seeking the instant permit and license,
as well as those opposing them, it would be constitutionally and morally impermissible to allow the
race of the applicants or their potential clientele to be a factor in this adjudication. What does factor
in, however, is the manner in which the applicants operated Bentley’s during the brief time it was
open, including both the activities that occurred within the nightclub and the disruption and criminal
activity that spilled out from the establishment. This tribunal has not been led to believe that there
will not be more of the same if the requested beer and wine permit and minibottle license were
granted.
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 Administrative Law Judge Division
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2002).
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.S.C. Code Ann. § 61-4-520 (Supp. 2002) 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).
4.S.C. Code Ann. § 61-6-1820 (Supp. 2002) sets forth the 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). Further, S.C. Code Ann. § 61-6-20(2) (Supp. 2002) and 23 S.C. Code Ann. Regs. 7-19 (Supp. 2002) prescribe additional parameters
and details for implementing the statutory requirements for a restaurant before the issuance of a
minibottle license to the establishment.
5.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).
6.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).
7.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)).
8.“[A] liquor license or permit may be properly refused on the ground that the location
of the establishment would adversely affect the public interest, that the nature of the neighborhood
and of the premises is such that the establishment would be detrimental to the welfare . . . of the
inhabitants, or that the manner of conducting the establishment would not be conducive to the
general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).
9.The denial of a license to sell alcoholic beverages is appropriate where the proximity
of the proposed outlet to areas of public congregation would aggravate problems related to the
consumption of alcohol in public. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981);
see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding the denial of a retail beer
and wine permit where the applicant’s property was already the site of congregations of people
attended by some consumption of alcohol and disorder). Such denial is particularly appropriate
when the public areas surrounding the proposed location have been the source of constant law
enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C.
451, 211 S.E.2d 243 (1975) (upholding the denial of a retail beer and wine permit upon evidence
that local law enforcement had constant problems with public intoxication in the vicinity of the
applicant’s store).
10.Given the frequency and severity of criminal activity and public disturbances that
occurred at and around the proposed location during Bentley’s mere three weeks of operation, and
the activities conducted within the establishment during that time, I find that the sale of alcoholic
beverages at the location by Petitioner would be detrimental to the general welfare of the
surrounding community.
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973), is instructive on this point. In that
case, a grocery store and launderette was seeking a retail beer and wine permit. Local law
enforcement officers testified that the store’s parking lot, which, through no fault of the store, had
become a place for local residents to congregate, was the site of frequent disturbances and other
criminal activity. The South Carolina Supreme Court upheld the Alcoholic Beverage Control
Commission’s denial of the permit on the ground that, as “congregations of people on [the
applicant’s] property are not infrequently attended by some consumption of alcohol and disorder .
. . .[,] the Commission could reasonably have concluded that the situation would be worsened by
making cold beer immediately available.” Id. at 58, 194 S.E.2d at 193. Such is the case here.
During the time in which it operated, Petitioner’s business and surrounding property became a place
of congregation not infrequently attended by the consumption of alcohol and other intoxicants and
by disorderly and criminal conduct. Accordingly, I conclude that the condition of the community
surrounding Petitioner’s property would be worsened by making beer and liquor immediately
available from Petitioner’s establishment.
11.This tribunal is respectful of the fact that the investors in J-Moe Enterprises have
expended significant time and resources in attempting to secure the permit and license in question.
Nevertheless, there has been a sufficient evidentiary showing in the present case that the proposed
location is unsuitable for Petitioner’s operations and that the issuance of a beer and wine permit and
a minibottle license would have an adverse impact on the community.
12.As the trier of fact, the issuance or denial of a permit or license rests within the sound
discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to
refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit and license in
the instant case is compelled because the issuance of the requested permit and license would be
detrimental to the inhabitants of the community surrounding Petitioner’s establishment.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that Petitioner’s application for an on-premises beer and wine
permit and restaurant minibottle license for the premises located at 7101 D Parklane Road,
Columbia, South Carolina, is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 22, 2003
Columbia, South Carolina |
