ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C.
Code Ann. § 61-2-90 (Supp. 2002), S.C. Code Ann. § 61-6-1825 (Supp. 2002) and S.C. Code Ann.
§§ 1-23-310 et seq. (1986 & Supp. 2000) for a contested case hearing. The Petitioner, Steve Tucker,
d/b/a Club Malik, seeks an on-premise restaurant sale and consumption license. The South Carolina
Department of Revenue (Department) set forth in the Agency Transmittal to the Division that it
would have issued the license to the Petitioner but for the protest it received from a concerned citizen
who raised the issue of suitability of location. Thereafter, the Department was excused from
attending this hearing per my Order dated April 25, 2003. Prior to the hearing into this matter,
Protestant R.H. Patterson filed a Motion to Intervene as a party. This motion was granted at the
hearing and the caption was amended to reflect his addition as a Respondent. A hearing was held on
June 10, 2003, at the offices of the Division.
BACKGROUND
On October 30, 2002, the Honorable Ray N. Stevens, Administrative Law Judge, held a
hearing concerning the issuance of a beer and wine permit for Club Malik. At that hearing, Judge
Stevens heard testimony and considered evidence from concerned citizens regarding the suitability
of this location. He subsequently issued a Final Order and Decision on that matter on December
2, 2002. See Docket No. 02-ALJ-17-0300-CC. In that Order, Judge Stevens made specific
Findings of Fact and Conclusions of Law regarding this location, including, but not limited to:
(a)The location has sufficient parking;
(b)There is minimal crime in the area; and
(c)There are no traffic problems around the location.
“Under the doctrine of collateral estoppel, once a final judgment on the merits has been reached
in a prior claim, relitigation of those issues actually and necessarily litigated and determined in the
first suit is precluded as to the parties and their privies in any subsequent action based upon a
different claim." Richburg v. Baughman, 290 S.C. 431, 351 S.E.2d 164, 166 (1986). See also
Carman v. South Carolina Alcoholic Beverage Control Comm'n, 317 S.C. 1, 451 S.E.2d 383, 386
(1994) (applying collateral estoppel in administrative proceedings). I find that the December 2,
2002 Final Order and Decision makes specific findings and conclusions regarding the facts that
were referenced in this case. Furthermore, no evidence was introduced at this hearing as to a
change in the area since the issuance of Judge Stevens’ Decision. Though the case before Judge
Stevens involved only the issuance of a beer and wine permit, the above facts are equally
applicable to the issuance of a sales and consumption license. Therefore, collateral estoppel
precludes Respondent Patterson from any further factual challenge to these issues. Consequently,
the above-listed matters (“a” through “c”) previously determined by the Division are barred by
collateral estoppel from relitigation.
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 Petitioner and the
Respondent, I make the following Findings of Fact by a preponderance of evidence:
General Findings
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner and the Respondents.
2.The Petitioner seeks an on-premise restaurant sale and consumption license for
Club Malik at 330 White Horse Road, Greenville, South Carolina. This location has been
previously permitted for the sale of beer and wine on-premises since December 2002, and is
operated as a bar and grill. It should be further noted that the Petitioner has not previously
sought a sale and consumption licence for this location.
3.The qualifications set forth in S.C. Code Ann. §61-6-1820 (Supp. 2002)
concerning the residency and age of the owner of the location, Steve Tucker, are properly
established. Mr. Tucker has also not had a permit or license revoked within the last two years and
notice of the application was lawfully posted both at the location and in a newspaper of general
circulation. Furthermore, Mr. Tucker has not had any violations against his beer and wine permit
since he has been in operation at Club Malik. Finally, the proposed location is not too close to
any church, school or playground.
4.Mr. Tucker has no criminal record and is of sufficient moral character to receive a
sale and consumption license.
Furthermore, no evidence was presented that challenged the
reputation of the Petitioner’s business for peace and good order in the community or its
principal’s moral character.
Suitability of the Location
5.Club Malik is situated on White Horse Road in a commercially zoned area of
Greenville County near other businesses that sell beer and wine off-premises as well as a retail
liquor store. The current hours of operation of Club Malik are 8:00 p.m. to 3:00 a.m. on Friday
and Saturday. Also, this location does not allow patrons under the age of twenty-five (25) to
enter the establishment and security is provided for both inside and outside the location. Mr.
Tucker also testified that loitering around the premises is not permitted and that this location has
not experienced any problems with law enforcement since he was issued his beer and wine permit.
6.Respondent Patterson contends that the Petitioner's location is not suitable for a
sale and consumption licence because of his concerns for the health and safety of the citizens of
this area of Greenville County and because of the effects alcohol can have on individuals in
general. He further contested that local law enforcement in the area is insufficient for the
number of locations that already sell alcohol – ultimately, the argument that the area is
“saturated.” Finally, he expressed concerns about the amount of traffic in the area, particularly
since White Horse Road serves as a corridor between Anderson and Greenville Counties and the
nearby interstates. Patterson presented two witnesses who concurred with his views.
In order to deny this permit, direct evidence of an adverse impact on the community is
necessary, particularly in light of the fact that the site of the proposed location has been previously
permitted for the sale of beer and wine without any actions having been brought against the
permittee. Furthermore, this location is in an area zoned for commercial businesses and other
locations that sell beer, wine and liquor both on and off-premises are in the surrounding area.
Finally, although Respondent Patterson makes the argument that the area is “saturated” with
locations that sell alcohol, this argument only applies to retail liquor stores. See S.C. Code Ann.
§ 61-6-170 (Supp. 2002). Nevertheless, Respondent Patterson did not present any evidence to
establish that the granting of this license will augment the criminal activity in this area or have an
overall adverse impact on the community.
The arguments of Respondent Patterson appear to be based on a sincere concern for this
area of Greenville County. However, the evidence did not establish that this business would
change the integrity of the neighborhood or create an overall adverse impact on the community if
granted this sale and consumption license. Therefore, since it appears that this business would not
change the integrity of the neighborhood or create an overall adverse impact on the community, I
find that the proposed location is suitable for a sale and consumption 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 (1986 & Supp. 2002) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures
Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Division the responsibilities
to determine contested matters governing alcoholic beverages, beer and wine.
3. 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. 2002) are met. That section requires
that a mini-bottle license be granted only to a bonafide business engaged in either the business of
primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not
only must the principals and applicant be of good moral character but the business must also have
a reputation for peace and good order.
4.S.C. Code Ann. § 61-6-20(2) (Supp. 2002) sets forth:
‘Bona fide engaged primarily and substantially in the preparation and serving of
meals’ means a business which has been issued a Class A restaurant license prior to
issuance of a license under Article 5 of this chapter, and in addition provides
facilities for seating not less than forty persons simultaneously at tables for the
service of meals.
Furthermore, in order to meet the requirements of S.C. Code Ann. § 61-6-20(2) (Supp. 2002)
the location must the requirements of 23 S.C. Code Ann. Regs. 7-19(A) (1976).
5.S.C. Code Ann. § 61-6-1820 (Supp. 2002) 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. 2002). This location meets these requirements.
6.Although "proper location" is not statutorily defined, the Administrative Law
Judge Division 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 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). In determining the suitability of a
location, it is proper for this Court to consider any evidence that demonstrates the adverse effect
the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246,
317 S.E. 2d 476 (Ct. App. 1984). 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. 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).
7.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 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).
8. Permits and licenses issued by this State for the sale of liquor, beer and wine are
not property rights. They are, rather, 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 Judge Division, as the tribunal authorized to grant the
issuance of a permit, may likewise place restrictions or conditions on the permit or license. See
Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9.The evidence did not establish that the location is unsuitable for a sale and
consumption license. Therefore, the Petitioner meets the statutory requirements for holding a
sales and consumption license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the sales and consumption license application of Steve Tucker, d/b/a
Club Malik, be granted upon the Petitioner’s payment of the required fees and costs.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
June 12, 2003
Columbia, South Carolina |
