ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner J & M
Enterprises, LLC, d/b/a SBB Four Corners (“Petitioner”), for a renewal of an on-premises beer and
wine permit and sale and consumption (“minibottle”) license for a location at 11980 Highway 17
Bypass, Murrells Inlet, South Carolina. Upon receipt of written protests to the application, the South
Carolina Department of Revenue (“Department”) transmitted the case to the Administrative Law
Judge Division (“ALJD”) for a hearing. After timely notice to the parties and the Protestants, a
contested case hearing was held on July 14, 2003, at the offices of the ALJD in Columbia, South
Carolina. The Department was excused from attending the hearing. At the beginning of the hearing,
this tribunal granted Raymond J. Harbin’s motion to intervene. Upon review of the relevant and
probative evidence and applicable law, the application for a renewal of an on-premises beer and wine
permit and minibottle license is granted, subject to the restrictions referred to herein.
FINDINGS OF FACT
Having carefully considered all testimony 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.Notice of the time, date, place, and subject matter of the hearing was given to all
parties and to the Protestants in a timely manner.
2.Petitioner seeks a renewal of an on-premises beer and wine permit and minibottle
license for the subject location of 11980 Highway 17 Bypass, Murrells Inlet, South Carolina.
3.Petitioner was approved for an on-premises beer and wine permit and minibottle
license with eleven restrictions at this location in an Amended Final Order and Decision issued by
Chief Administrative Law Judge Kittrell on October 11, 2002 (hereinafter “the October 11, 2002
Order”).
Two of the restrictions were replaced with different language in a Consent Order of
Dismissal issued by Circuit Court Judge Cooper on October 23, 2002 (hereinafter “the October 23,
2002 Order”).
4.The only issues raised by the Intervenor and the Protestants at the hearing were: (1)
noise levels at the Petitioner’s establishment; (2) parking at and around the Petitioner’s establishment;
and (3) the definition of “special events” as used in the restrictions put in place in the October 11,
2002 Order, as amended by the October 23, 2002 Order.
5.Regarding the noise issue, the Intervenor and the Protestants presented testimonial
evidence that music played at the Petitioner’s establishment and the sound of running motorcycle
engines are audible from inside the homes in the neighboring residential area. According to
testimony, from time to time the Petitioner has featured an attraction at its establishment called the
Wall of Death, in which a motorcycle is driven around in circles inside of a barrel. One of the
Protestants testified that she has complained to Horry County officials about the noise level on past
occasions. That same Protestant further testified that the noise has not been as noticeable in the past
two weeks.
6.Regarding the parking issue, the Intervenor and the Protestants submitted testimonial
evidence that on nights when the Petitioner’s establishment is crowded, parking overflows beyond
the Petitioner’s parking spaces, and customers of the Petitioner’s establishment park on the public
roadways surrounding the establishment. One of the owners of J & M Enterprises, LLC testified that
he once attempted to direct cars not to park on the neighboring streets, but a police officer instructed
him that he was not allowed to direct traffic or instruct cars on where to park on public roadways.
7.Regarding the definition of “special events,” the Intervenor and the Protestants
presented testimonial evidence that there is a need for a clarification of what a “special event” is as
used in the restrictions put in place in the October 11, 2002 Order, as amended by the October 23,
2002 Order. During the hearing, the Petitioner stipulated that Spring Bike Week and Fall Bike Week
are “special events.” The Petitioner further indicated that it would not have a problem with including
charitable fundraisers in the definition of “special events.”
8.The Intervenor and the Protestants also made a general request that the restrictions
contained in the October 11, 2002 Order remain in force.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude as a matter of law, the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer, and wine.
2.Pursuant to the South Carolina Supreme Court’s decision in Taylor v. Lewis, 261 S.C.
168, 198 S.E.2d 801 (1973), in considering an application for a renewal of a permit or license, it is
important to consider whether the location is now more or less suitable than in the past. Based on
the evidence submitted at the hearing, I conclude that there has not been a showing that the location
is any less suitable for a beer and wine permit and minibottle license now than it was when its last
application for a permit and license was granted in October 2002.
3.The first two issues raised by the Intervenor and the Protestants, regarding the noise
level and parking, are essentially zoning issues. The ultimate purpose of zoning is to confine certain
classes of buildings and uses to certain localities. 101A C.J.S. Zoning and Land Planning § 101
(1979). Such authority is vested solely in the local government.
4.As to the Intervenor’s and the Protestants’ third issue, regarding a definition of
“special events,” and their general request that the restrictions set forth in the October 11, 2002 Order
remain in effect, I conclude that the restrictions set forth in the October 11, 2002 Order, as amended
by the October 23, 2002 Order, should apply to the renewed permit and license, with the added
provision that “special events” shall be defined as including Spring Bike Week, Fall Bike Week, and
charitable fundraisers.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for an on-premises beer and
wine permit and sale and consumption (“minibottle”) license for a location at 11980 Highway 17 By
Pass, Murrells Inlet, South Carolina, is GRANTED, subject to the restrictions in the October 11,
2002 Order, as amended by the October 23, 2002 Order, with the added provision that “special
events” shall be defined as including Spring Bike Week, Fall Bike Week, and charitable fundraisers;
IT IS FURTHER ORDERED that the permit and license shall only be issued by the
Department upon the Petitioner signing a written statement to be filed with the Department to adhere
to the restrictions;
IT IS FURTHER ORDERED that a violation of any of the restrictions will be considered
a violation against the permit and license and may result in a fine, suspension, or revocation of the
permit and license;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
July 16, 2003
Columbia, South Carolina |
