ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before me for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) and S.C.
Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1999). Fox Properties, Inc. ("Petitioner") through one of its owners, Brian
M. Iagnemma, filed an application for an on-premise beer and wine permit ("permit"), an on-premise sale and consumption
license ("mini-bottle license") and an alcoholic liqueurs license ("cooking license") for a restaurant located at 4494 Highway
17 Business, Murrells Inlet, Georgetown County, South Carolina ("location"). The application was objected to both by the
South Carolina Department of Revenue ("Department"), William Lee Hewitt III, a neighbor ("Intervenor"), and the
Georgetown County Sheriff's Office ("Protestant").
The issues considered at the hearing were the suitability of the proposed location and failure to comply with the provisions of
S.C. Code Ann. § 61-6- 20(2) (Supp. 1999). Appearing at the hearing and offering testimony were Brian Iagnemma on
behalf of the Petitioner, the Intervenor William Lee Hewitt III, and James William Nichols, Deputy with the Georgetown
County Sheriff's Office.
The application is granted with restrictions.
EXHIBITS
Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of
the record. At the hearing, the Petitioner placed into the record eight exhibits, which included the site development plans
showing the walls, gates and landscaping, interior floor plans, and hours of operation together with costs, 41 photographs, a
map, a brochure and a copy of the menu. The Intervenor placed into the record a tax map together with four photographs.
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 or protestants, I make the following Findings of Fact by a
preponderance of the evidence:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and subject matter of the hearing was timely given to all parties and Protestants.
3. The Petitioner, Fox Properties, Inc., through its owners and officers, Alphonse Iagnemma, Jr., Renee M. Iagnemma,
Brian M. Iagnemma and Michael P. Iagnemma (a husband, wife and two sons), is seeking an on-premise beer and wine
permit, a mini-bottle license and a cooking license for a restaurant located at 4494 Highway 17 Business, Murrells Inlet,
Georgetown County, South Carolina 29576. The permit and licenses will be issued to Brian M. Iagnemma.
4. Alphonse Iagnemma, Jr. owns a consulting business with offices in both Myrtle Beach, South Carolina and Pittsburgh,
Pennsylvania. Renee, his wife, assists him in his business. The two sons will assist in the restaurant operation. Mr.
Iagnemma's family has operated a restaurant in Pittsburgh, Pennsylvania in the past and Mrs. Iagnemma's family has
operated two restaurants in Pittsburgh, Pennsylvania.
5. All four members of the Iagnemma family are over the age of twenty-one (21) years, are residents and citizens of the State
of South Carolina and have been for more than thirty (30) days prior to the filing of the application in July 1999. Further,
they are all of good moral character. Brian M. Iagnemma, who will hold the permit and licenses, has never been convicted of
a crime.
6. The location will be operated primarily as a restaurant. Petitioner will engage at the location primarily and substantially in
the preparation and serving of meals. The restaurant will operate under the name "The Inlet Grille & Raw Bar". Pictures
of the restaurant are shown on Petitioner's exhibits 1-4.
7. The location was purchased by the Iagnemma family as an asset in their solely owned corporation, Fox Properties, in April
1999, for the sum of Six Hundred Fifty and no/100 Thousand ($650,000.00) Dollars.
8. The restaurant has been renovated by Petitioner. As part of the renovations, the grounds have been landscaped and a
wrought iron fence has been placed along Gibson Street. Petitioner has a total investment of nearly Two and one/half
($2,500,000.00) Dollars in the property.
9. Petitioner intends to operate an upscale restaurant and a raw bar. Part of the raw bar will be on the exterior and there will
be tables and chairs outside. The Iagnemmas intend to serve food and alcoholic beverages both inside and outside the
restaurant. Layouts of the interior and exterior areas are shown on Petitioner's exhibits. Pet. Exhibits 2 and 3. After
completion of the renovation, the restaurant will seat three hundred (300) people. There will be seats at the raw bar on the
exterior for 18 people and there will be twenty-four (24) tables outside.
10. The location is bounded on the northeast by William Dallas Avenue, on the southeast by Highway 17 business, on the
southwest by Gibson Avenue and on the northwest by residences. Pet. Exhibits 2 and 7.
11. The restaurant is located within a mixed commercial-residential area. Most of the locations fronting on Highway 17 are
commercial. There are residential areas located to their rear.
Pet. Exhibit 2.
12. There are a number of other businesses in close proximity to the location where either beer, wine and liquor or all three
are sold for on-premise and/or off-premise consumption. Pet. Exhibit 13. There are also numerous residences which are in
close proximity to the location, one of which belongs to the Intervenor William Lee Hewitt III. The distance from the edge
of his property to the edge of Petitioner's location across Highway 17 Business is approximately 150 to 175 feet. Mr.
Hewitt lives in his home with his wife and two children. His concern is with the intended late hours of operation by the
Petitioner and the serving of food and alcoholic beverages at late evening and early morning hours. He and his family have
had to "live with the loud noise when it gets out of hand." As a result of Mr. Hewitt's protests, the pub known as "Chug-a-Lug" has closed. Mr. Hewitt has also objected to and protested permits and licenses being sought by the Accoustic Cafe,
which was located beside his house but across Highway 17 Business from The Inlet Grille & Raw Bar. That protest went to
a hearing and the permit/license was denied. Mr. Hewitt objects to outside service of food or alcoholic beverages by the
Petitioner.
13. Jerry Donahue lives next to the location. His property is across Gibson Street and also fronts on Highway 17 Business.
He lives upstairs with his family and operates a barber shop downstairs. Mr. Donahue and other neighbors in close proximity
to the location have protested this application. They are concerned that late operation of a restaurant with an outside bar and
food service area will bring loud noise and rowdiness to the neighborhood.
14. The property was previously licensed and permitted by the Department in 1996 to Jon D. McMillan, President of Alice
Flagg's, Inc., d/b/a "Alice Flagg's Fine Food and Spirits." Mr. McMillan did not seek renewal of his license and permit. The
application by Mr. McMillan referenced that the location had been previously permitted and licensed to a restaurant called
"Wallace Lee"s Other Place" from 1985 to 1996.
15. The building and its renovation was almost complete at the time of the hearing. No Class A permit had yet been issued
since the renovation was continuing.
16. Petitioner intends to open the restaurant for business on June 1, 2000.
17. There have been no restrictions of the beer and wine permits and on-premise liquor licenses which have been issued at
the location in the past.
18. Petitioner intends to operate the restaurant between the hours of 11:00 a.m. and 2:00 a.m. Monday through Friday, and
from 9:30 a.m. to 2:00 a.m. on Saturday and Sunday. Petitioner intends to close at earlier hours if there is no business at the
location.
19. There are no playgrounds or schools located within five hundred (500') feet of the location/restaurant. However, there
is a church (Murrells Inlet Church of God) located to the northeast of the location.
20. In light of testimony presented at the hearing, counsel for the Intervenor stated that he desired to have a SLED agent
remeasure the distance from the fence area of the restaurant facing on Gibson Street to the church. After the hearing, the
SLED agent did go to the location and prepared a new drawing of the general vicinity, which was made part of the record
pursuant to the Intervenor's Motion to Reopen the Record. The drawing is dated April 27, 2000. It is readily apparent from
the drawing that the two residences that fronted on Gibson Avenue as depicted by the SLED agent on his drawing dated
October 5, 1999 are no longer there. A parking lot, which is apparently used by the church, now separates the physical
structure of the church from the restaurant/location. Notwithstanding the new evidence, I find that the location meets the
statutory distance requirement of five hundred (500') from the church.
21. Petitioner has not talked with the owners of the residences behind the location to elicit any objections they may have to
the issuance of the permit and licenses. Petitioner believes that since the location has been permitted and licensed in the past
that it must once again be permitted and licensed to its officer and agent, Brian M. Iagnemma.
22. None of the four members of the Iagnemma family have ever had a beer and wine permit or a business sale and
consumption license revoked.
23. Notice of this application has appeared at least once a week for three (3) consecutive weeks in The Georgetown Times, a
newspaper of general circulation in the local area where the Petitioner and the Iagnemma's propose to operate this
restaurant.
24. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the
proposed location.
25. Fox Properties, Inc. was incorporated in South Carolina. Its Articles of Incorporation were filed with the office of the
Secretary of State in Columbia, South Carolina.
26. The Georgetown County Sheriff's Office also protested the application. The Sheriff's Office has had a number of
complaints in the past from residents in the general vicinity of the location about restaurants that serve food and alcoholic
beverages outside. The complaints centered on loud noise. Such reports have caused the use of a lot of manpower by the
sheriff's office addressing the problem. Further, the sheriff's office is concerned because the restaurant is located in an area
that is heavily traveled.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South
Carolina Administrative Law Judge Division has jurisdiction in this matter.
2. S.C. Code Ann. § 61-4-520 (Supp. 1999), which sets forth the requirements for the issuance of a beer and wine permit,
provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1) The applicant, any partner of 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.
2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days
before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the
date of application.
3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty
days before the date of application and has maintained his principal place of abode in the State for at least thirty days before
the date of application or has been licensed previously under the laws of this State.
4) The applicant, within two years before the date of application, has not had revoked a beer or wine permit issued to him.
5) The applicant is twenty-one years of age or older.
6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.
7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences,
schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.
8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give
notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The
department must determine which newspapers meet the requirements of this section based on available circulation figures.
However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are
published, the advertisements published in that newspaper meet the requirements of this section . An applicant for a beer and
wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the
department.
9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of permit sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
3. S.C. Code Ann. § 61-6-1820 (Supp. 1999), which sets forth the requirements for the issuance of a sale and consumption
("mini-bottle") license, provides as follows:
The Department may issue a license under subarticle 1 of this article upon finding:
1) The 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.
2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace
and good order in its community, and its principals are of good moral character.
3) As to business establishments or locations established after November 7, 1962, § 61-6-120 has been complied with.
4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give
notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business.
The department shall determine which newspapers meet the requirements of this section based on available circulation
figures. However, if a newspaper is published within the county and historically has been the newspaper where the
advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An
applicant for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved
by the department.
5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of license sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
6) The applicant is twenty-one years of age or older.
7) The applicant is a legal resident of the United States, has been a resident of this State for at least thirty days before the
date of application, and has maintained his principal place of abode in this State for at least thirty days before the date of
application.
8) The applicant has not been convicted of a felony within ten years of the date of application.
4. S. C. Code Ann. § 61-6-120 (Supp. 1999) provides that a liquor license shall not be issued if the place of business to be
licensed is located within three hundred feet of any church, school, or playground situated within a municipality, or within
five hundred feet of any church, school, or playground situated outside of a municipality. No churches, schools or
playgrounds are located within the prescribed proximity to render the proposed location unsuitable based on this distance
requirement.
5. A license for the sale and consumption of alcoholic beverages must not be granted unless the location will be operated
either as a bona fide non-profit organization or the licensee intends to conduct a bona fide business engaged primarily and
substantially in food preparation and service or the furnishing of lodging.
6. S.C. Code Ann. § 61-6-20 (2) and (4) (Supp. 1999), which define a bona fide business engaged primarily and substantially
in the preparation and serving of meals or furnishing of lodging, read in part as follows:
As used in the ABC Act, unless the context clearly requires otherwise:
* * *
(2) "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.
(4) "Furnishing lodging" means those businesses which rent accommodations for lodging to the public on a regular basis
consisting of not less than twenty rooms.
Petitioner is applying for a liquor license at a location which will be engaged primarily in the preparation and serving of food.
7. S.C. Code Ann. Regs. § 7-19 defines "restaurants" as follows:
A. Any business establishment that applies for or holds a sale and consumption license pursuant to § 61-5-20 (4) (now §§
61-6-20, 61-6-1600, 61-6-1610, 61-6-1620, 61-6-2200, 61-6-2210, 61-6-4020 and 61-6-4710) of the Code and is not
engaged in the furnishing of lodging, must:
1. Be equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals; and
2. Have readily available to its guests and patrons either "menus" with the listings of the various meals offered for service
or a listing of available meals and foods, posted in a conspicuous place readily discernible by the guest or patrons; and
3. Prepare for service to customers hot meals at least once each day the business establishment chooses to be open.
4. If such establishment advertises, a substantial portion of its advertising must be devoted to its food services.
This court finds that the Petitioner has complied with the provisions of this regulation and § 61-6-20 (Supp. 1999).
8. S. C. Code Ann. § 61-6-700 (Supp. 1999) provides that an establishment which offers meals to the public must be licensed
by the Department to purchase and possess liqueurs, wines, and similar alcoholic beverages used solely in the cooking and
preparing of foods served by the establishment.
9. A license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 1999)
if : (1) the applicant is not a suitable person to be licensed; (2) the store or place of business to be occupied by the applicant
is not a suitable place; or (3) a sufficient number of licenses have already been issued in the State, incorporated municipality,
unincorporated municipality or other community.
10. Petitioner and its agent, Brian M. Iagnemma, have met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and
61-6-1820 (Supp. 1999), concerning residency, age, moral requirements, criminal convictions, reputation for peace and
good order in its community, as well as the publication and notice requirements.
11. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the
proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion.
Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's
responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony
and evidence offered.
12. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or
suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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 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). Any evidence adverse to the location may be considered. The
proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to
be unsuitable and a permit denied. Byers v. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court
can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246,
317 S.E.2d 476 (Ct. App. 1984).
13. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether
the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168,
198 S.E.2d 801 (1973). An applicant seeking a permit or license at a location that has been previously permitted and/or
licensed, must still meet the statutory requirements and the location must be found to be suitable. Changes occur in
communities and all factors can be weighed by the judge in making a decision.
14. In this case, the testimony of the Georgetown County Deputy Sheriff about problems with loud noise at permitted and
licensed locations in the vicinity of this location which serve food outside at late hours is credible evidence which this court
must consider. Of particular concern in this case is the fact that individuals live with their families in close proximity to this
restaurant.
This court applauds Petitioner and members of the Iagnemma family in the renovation of this location and the extensive
landscaping that has been done. However, the rights of the citizens who live nearby to enjoy their homes in peace and quiet
must be weighed against the rights of the Petitioner to operate and serve both food and alcoholic beverages outside at late
hours of the night and morning. As there is credible evidence, presented by both residents of the area and the representative
of the Georgetown County Sheriff's Office, that the service of food and beverages outside has created problems in the
vicinity of this location, I conclude that restrictions on the outside sale of food and beverages must be placed on the
Petitioner's permit and licenses to ensure that citizens in their homes are not unduly disturbed. Petitioner may, however,
continue to serve food and beverages inside the restaurant during all hours when it is open for business.
The court finds that, in light of the evidence presented, that the outside service of food and all beverages, including alcoholic
beverages, must end at 10:00 p.m. every night of the week and all patrons, customers, guests and employees must vacate the
exterior service locations at the restaurant not later than 11:00 p.m. This shall be a restriction on the permit and licenses. In
placing this restriction on the Petitioner's permit and licenses, this court is concerned with protecting the safety and well-being of the residents who live in this neighborhood and finds that such far outweighs the need or desire of the Petitioner to
serve food and beverages until 2:00 a.m. in the outside raw bar and service areas. This restriction will provide for some
stability and security to the families who live in the surrounding community while allowing the Petitioner to serve alcoholic
beverages.
The sale of beer, wine or liquor is a lawful enterprise in South Carolina, as regulated by the State. Permits and licenses issued
by the State for the sale of liquor, beer, and wine 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 permit is also authorized, for cause, to revoke it, that
tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'n,
203 S.C. 49, 26 S.E.2d 22 (1943).
16. A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension
of the permit or license pursuant to S.C. Code Ann. §§ 61-4-580 and 61-6-1830 (Supp. 1999).
17. S.C. Code Ann. § 61-2-160 (Supp. 1999) prohibits the issuance, renewal or transfer of a permit or license under Title 61
if the applicant owes state or federal government delinquent taxes, penalties or interest.
18. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for
holding a retail beer and wine permit, a sale and consumption ("mini-bottle") license as a restaurant and a cooking license at
the location. I further conclude that the proposed location is a proper one for granting the permit and licenses, subject to the
following restrictions which must be stipulated to:
RESTRICTIONS
1. The Petitioner or its employees shall maintain proper lighting around the proposed location to discourage criminal activity.
The Petitioner shall insure that the lights do not reflect or shine upon the local residences.
2. The Petitioner and its employees shall prohibit loitering and the consumption of beer, wine or liquor by the
patrons/customers in the parking lot area of the proposed location.
3. Petitioner shall cease serving both meals and beverages, including alcoholic beverages, to its customers, patrons, guests
and employees at all exterior areas at its restaurant not later than 10:00 p.m. every night. Further, Petitioner shall ensure that
all guests, patrons, customers and employees have vacated the exterior service areas at its location not later than 11:00 p.m.
every night. Petitioner may continue to serve meals and beverages, including alcoholic beverages, inside its restaurant during
all hours the restaurant is open for business.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Fox Properties, Inc.. for an on-premise beer and wine permit, a business sale and
consumption ("mini-bottle") license as a restaurant and a cooking license for its location at 4494 Highway 17 Business,
Murrells Inlet, Georgetown County, South Carolina is granted upon payment of all fees and statutory requirements, and it is
further
ORDERED that the permit and licenses shall only be issued by the Department upon the applicant's signing a written
agreement to be filed with the Department to adhere to the restrictions set forth above; and it is further
ORDERED that a violation of any of the above conditions will be considered a violation against the permit and licenses
and may result in a fine, suspension, or revocation of the permit and licenses.
AND IT IS SO ORDERED.
__________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
June 6, 2000 |
