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) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002)
for a contested case hearing. The Petitioner, PKDT, Inc., d/b/a Planks Bar & Grill (Planks), seeks
renewal of its on-premise beer and wine permit and 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 renewed the Petitioner’s permit and license but for the protest it received
from concerned citizens who raised the issue of suitability of location. Therefore, the Department
requested to be excused from attending this hearing which was granted per my Order dated June 16,
2003. On June 23, 2003, Respondent Ocean Pier Homeowners Association filed a Motion to
Intervene. Pursuant to ALJD Rule 20, this motion was granted by my Order dated June 30, 2003.
A hearing was held on July 16, 2003, at the offices of the Division.
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 and the Respondent(s).
2.The Petitioner seeks to renew its on-premise beer and wine permit and restaurant sale
and consumption license as a corporation doing business at 3612 S. Ocean Blvd., North Myrtle
Beach, South Carolina.
3.The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp.
2002) concerning the residency and age of the owner of the Petitioner location, Dennis Jordan, are
properly established. Furthermore, Mr. Jordan has 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. The proposed location is also not unreasonably close to any school or
playground.
4.Mr. Jordan has no criminal record and is of sufficient moral character to receive a beer
and wine permit and sale and consumption license.
5.Planks is situated on South Ocean Boulevard, two rows back from “beach front,” in
an area of North Myrtle Beach surrounded by approximately 200 apartments and condominiums.
The Petitioner has been operating as this business under a license and permit since 2001. Also, this
location had been previously licensed and permitted since 1996.
6.Mr. Jordan has held a beer and wine permit and a restaurant sale and consumption
license at Planks from May 2001 until April 2003. In fact, Respondent Ocean Pier Homeowners
Association (Ocean Pier) agreed to the location’s past permit and license based upon a Consent
Agreement entered into by Planks and Ocean Pier on June 7, 2001. Ocean Pier, however, contends
that the Petitioner's location is now not suitable because:
a.The location has violated its Agreement by allowing its doors to be propped
open;
b.The location has violated its Agreement by allowing noisy patrons on any
decks after 10:00 p.m. at night;
c.The Petitioner has allowed loud noise to emanate from the deck of the
location;
d.The patrons of the location generally loiter around the location and create
excessive noise, especially in the early morning hours; and
e.The patrons park in the designated parking areas of nearby residents, in
particularly residents of Ocean Pier Condominiums.
More specifically, the Respondent argues that this location has a reputation for excessive late
night noise that keeps the nearby residents awake, especially emanating from the outside deck. The
patrons loiter around the location thereby carrying the noise and disruption outside. Furthermore,
the Respondent has made numerous calls to law enforcement about the noise and fights that have kept
the nearby residents awake at night. Also, the Respondent has been subjected to loud music coming
from the location, due to the doors being propped open.
7.Planks is located in an area zoned commercial. On the other hand, it is also
surrounded by condominium units and apartments. These condominiums and apartments house
individuals ranging from short term vacationers to permanent residents. Ocean Pier objected to the
Petitioner receiving its current license and permit based upon concerns about the impact of the
location upon the residents of this area. As a result of that protest, the Petitioner agreed to comply
with the following conditions in the June 7, 2001 Consent Agreement:
a.No outdoor bands shall be allowed;
b.The doors of the restaurant shall not be propped open;
c.No audio speaker or amplifiers shall be allowed outside the restaurant after
10:00 p.m.;
d.Noisy patrons shall not be allowed on any decks outside the restaurant after
10:00 p.m.; and
e.No noise, music or other sound shall be projected from any portion of the
Planks Restaurant property which sound, measured at the boundary of the
Ocean Pier Condominiums property closest to the Planks Restaurant property,
exceeds 55 decibels between 7:00 a.m. and 10:00 p.m. or 50 decibels between
10:00 p.m. and 7:00 a.m.
After agreeing to those terms and opening the restaurant, Planks has generated excessive
noise.
The music emanating from the location when the business has live bands and on “karaoke
nights” has been occasionally excessive. These instances, however, can be controlled by the
Petitioner regulating the noise emanating from the location within the decibel range Planks agreed
to in the past. The noise that is more problematic is the noise originating from the patrons on the
deck of the location and from the parking area along the side of the location. This noise is most
excessive late on Fridays and Saturdays. Additionally, the parking area at the back of the location
has been an incessant source of disruptive behavior by the Petitioner’s patrons including fights and
open urination in the parking area and the adjacent apartment grounds. The continuation of those
problems would render this location unsuitable.
Nevertheless, this location has been approved in the past and though the Respondent has had
difficulty reaching the staff of Planks via telephone late at night, when reached, the Petitioner has
seemingly cooperated with the Respondent’s requests to tone down the noise. Therefore, I find this
location is suitable with the restrictions set forth below. These restrictions, however, are necessary
to rectify the problems that would render the location unsuitable and to protect the integrity of the
community. Furthermore, the determination of the suitability of the renewal of the Petitioner’s license
and permit is specifically based upon the restrictions below. Consequently, if the Petitioner’s business
is not operated as described in this Decision or the Petitioner fails to comply with these restrictions,
the finding of suitability in this Decision would no longer be valid and the Department could properly
bring an action to revoke the Petitioner’s license and permit.
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. S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for the issuance
of an on-premise beer and wine permit.
4. 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.
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).
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, 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). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976),
authorizing the imposition of restrictions on permits, provides:
Any stipulation and/or agreement which is voluntarily entered into by an applicant in
writing for a beer and wine permit between the applicant and the South Carolina
Alcoholic Beverage Control Commission, if accepted by the Commission, will be
incorporated into the basic requirements for the enjoyment and privilege of obtaining
and retaining the beer and wine permit and which shall have the same effect as any and
all laws and any and all other regulations pertaining to the effective administration of
beer and wine permittees.
In the event that evidence is presented to this Commission that any part of the
stipulation or agreement is or has been knowingly broken by the permittee will be a
violation against the permit and shall constitute sufficient grounds to suspend or
revoke said beer and wine permit.
9.The Petitioner meets the statutory requirements for renewal of its on-premise beer and
wine permit and restaurant sale and consumption license at this location with the following
restrictions set forth below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit and restaurant sale and consumption
license of Planks be granted upon the Petitioner signing a written Agreement with the South Carolina
Department of Revenue agreeing to the restrictions that are set forth below:
1.The doors of the location shall not be propped open at any time patrons are in the
location;
2.No patrons shall be allowed on outside decks of the location after 11:00 p.m.;
3.Excessive noise shall not emanate from the location. In other words, no noise, music
or other sound shall be projected from any portion of the Planks Restaurant property
which sound, measured at the boundary of the Ocean Pier Condominiums property
closest to the Planks Restaurant property, exceeds 55 decibels between 7:00 a.m. and
10:00 p.m. or 50 decibels between 10:00 p.m. and 7:00 a.m. In order to comply with
this condition, the Petitioner shall obtain a decibel meter and check the sound levels
when live bands appear at the location or they host “karaoke nights” to insure Planks
is complying with the above limits.
4.The Petitioner or his employees shall prohibit loitering in the immediate vicinity of this
location and shall ensure that no public disturbance is created. To accomplish this
stipulation, the Petitioner or his employees must personally survey the parking area
of the location at least every thirty (30) minutes to determine whether loiterers are
present. The Petitioner must instruct any loiterers who are present to leave the area
and notify law enforcement if the loiterer fails to comply with the request within a
reasonable amount of time. Furthermore, the Petitioner shall have at least one security
guard, dedicated only to security, after the hour of 12:00 a.m. to patrol the area
immediately surrounding the proposed location. The security guard(s) shall prohibit
public disturbances of any kind at the location. The guard(s) shall also monitor the
outside of the location to prohibit the consumption of any alcohol or the use of any
drugs.
IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered
a violation against the permit and license and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department of Revenue re-issue an on-premise beer
and wine permit and restaurant sale and consumption license upon the payment of the required fees
and costs by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
July 23, 2003
Columbia, South Carolina |
