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). Bob's, Inc., ("Petitioner") through its president, Bobby Lee
McNeeley, filed applications for an on-premise beer and wine permit and an on-premise sale and consumption ("mini-bottle") license for the premises located at 1012 Hanes Street, Spartanburg, Spartanburg County, South Carolina
("location"). The applications were objected to both by the Department of Revenue ("Department") and the Spartanburg
County Sheriff's Office ("Protestant").
A hearing was held on May 2, 2000 at the offices of the Administrative Law Judge Division, ("Division"), Columbia, South
Carolina. The issues considered were the suitability of the proposed location and failure to comply with the provisions of
S.C. Code Ann. Regs. 7-17. Appearing at the hearing and offering testimony were the Petitioner and Sgt. Curtis Kesler, a
deputy with the Spartanburg County Sheriff's Office.
The application requests are denied.
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, without objection, seven photographs and the Respondent
placed into the record, without objection , a membership application.
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, Bob's Inc., through its president, Bobby L. McNeeley, is seeking an on-premise beer and wine permit and
a sale and consumption license for a nonprofit private club known as "Bob's Inc.", located at 1012 Hanes Street,
Spartanburg, Spartanburg County, South Carolina.
4. The location is within a mixed commercial-residential area. There are a number of other locations in close proximity to
the location where either beer, wine and liquor or all are sold for on-premise and/or off-premise consumption, e.g., Rays,
The Pub and Pudgys. There are also numerous residences which are in close proximity to the location. Some of these
residents protested the application but did not appear at the hearing. There are also some churches in close proximity to the
location; however, no member, minister or other person representing any of the churches appeared at the hearing .
5. The building at the location is complete and has been operational for some number of years. A beer and wine permit for
on-premise consumption was issued in December 1994 by the Department to Mr. McNeeley's wife, Barbara J. McNeeley,
d/b/a Una Bar & Game Room, at this location and it was still effective at of the time of the hearing.
6. The building at the location contains approximately 900 square feet, accordingly to the testimony of Mr. McNeeley. A bar
is located inside as well as some pool tables, a juke box, and some tables and chairs. The building is owned by Mr.
McNeeley and the equipment located inside
the building is owned by both Mr. and Mrs. McNeeley. They intend to rent the building and facility to the private club. Mr.
McNeeley will draw a salary from the private club as will his wife.
6. While operating this business at the location, Mrs. McNeeley and her husband have employed women who have
performed topless on frequent occasions.
7. Both Mr. McNeeley and his wife are residents and citizens of the County of Spartanburg and State of South Carolina.
Mr. McNeeley was born on October 30, 1943 and his wife was born on December 31, 1956. They have been residents and
citizens of Spartanburg County for a number of years.
8. Neither the Petitioner, Mr. McNeeley nor his wife have ever had a beer and wine permit or a business sale and
consumption license revoked.
9. Notice of this application has appeared at least once a week for three (3) consecutive weeks in The Spartanburg Herald-Journal, a newspaper of general circulation in the local area where the Petitioner and Mr. McNeeley propose to engage in
this business.
10. 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.
11. Mr. McNeeley is of good moral character and has no record of any criminal convictions.
12. Bob's Inc. has been incorporated as a nonprofit corporation in South Carolina and its Articles of Incorporation have been
filed with the office of the Secretary of State of South Carolina. It has prepared By-Laws which define its offices, fiscal year,
purposes, membership qualifications, membership dues, personnel, officers with their functions and duties, board of
directors, meetings, amendments to the By-Laws, and procedures regarding the dissolution of the corporation.
13. If granted the permit and license, Petitioner and Mr. McNeeley intend to operate a private club at the location which
would be open to and used only by its members and their guests. Its regular hours of operation will be 2:00 p.m. to 12:00
a.m. daily. Mr. McNeeley testified at the hearing that seventy-five (75) individuals have signed an agreement to become
members at the club. However, Petitioner did not provide the names of any members or potential members of the non-profit
club to the Department or to this court.
14. Neither Mr. McNeeley nor his wife are operating the location as a private club at the present time. There have been no
meetings of the membership of the club nor has it collected any monies or dues from its members.
15. The parking lot at the location appears to be well lighted and will accommodate a goodly number of cars or vehicles. It
is adequate for the number of patrons the Petitioner intends to serve.
16. It has been determined by the Secretary of State of South Carolina that the Petitioner is in good standing.
17. Petitioner and Mr. McNeeley intend to place video game machines inside the location if they are so allowed by state law.
18. The Spartanburg County Sheriff, through its Deputy Curtis Lee Kesler, protested the application and voiced several
concerns at the hearing. Deputy Kesler served for five (5) years as the community police officer in the locale where the
private club is proposed. He is very familiar with the problems which have occurred at the location under the ownership of
Mr. McNeeley and his wife. There have been several incidents there and several arrests have been made. Deputy Kesler is
concerned with the club reopening with the service of beer, wine and liquor on premises. He has gotten to know the people
in the community quite well and thinks that clubs run by Mr. McNeeley and his wife do not protect or enhance the quality of
life which this neighborhood needs and requires.
On December 10, 1998, officers of the Spartanburg County Sheriff's Department working as undercover operatives went to
the location, known at that time as "Bob's Place". They observed female dancers sitting in patrons' laps and exposing their
private parts. The dancers' actions were defined as lewd and lascivious in the incident report. Two of the dancers were
arrested by the Sheriff's Department on January 14, 1999 as a result of this undercover investigation on December 10, 1998.
A fight occurred in the parking area at the location on October 5, 1996 at approximately 0155 a.m. The location was owned
by Bobby McNeeley and was called Bob's Pool Room. Both individuals had been drinking and one ended up with a bloody
nose. The incident was witnessed by Bobby Lee McNeeley. The incident report listed the altercation as assault and battery.
Another incident occurred at the location on March 24, 1999. Someone broke the window in the passenger side of a car
with a concrete block and stole some items. No one was charged.
On May 5, 1998 at approximately 11:30 p.m., another fight occurred in the bar at the location. One of the patrons was
charged with assault and battery when he struck another in the face. Deputy Kesler expressed concern about the safety of
the people living in the community because of the many incidents of violence occurring at the location.
19. Mr. McNeeley owns a restaurant which operates in a building next to or adjacent to the building in which he intends to
operate the private club. Food will be prepared at this restaurant and delivered to the private club for serving to the club
members.
20. Mr. McNeeley stipulated at the close of the hearing that the private club would not allow topless entertainment and
would agree for such stipulation to be placed on the license and permit.
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. 1996), 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 not applying for a liquor license at a location which is engaged primarily in the preparation and serving of food
or the business of furnishing lodging.
7. S.C. Code Ann. § 61-6-1600 (Supp. 1996) provides as follows:
Nonprofit organizations which are licensed by the department under this article may sell alcoholic liquors in mini-bottles.
Members or guests of members of these organizations may consume alcoholic liquors sold in mini-bottles upon the premises
between the hours of ten o'clock in the morning and two o'clock the following morning.
See also S.C. Code Ann. Regs. § 7-14 C. (1976) which provides that if a licensed location is leased, the lease agreement
shall automatically terminate at 2:00 a.m.
8. S.C. Code Ann. Regs. § 7-17 (1976), entitled "Sale and Consumption at Nonprofit Organizations", sets forth the
requirements which must be met by an applicant to obtain a liquor license. Petitioner is applying for the license as a
nonprofit organization.
Petitioner has complied with some of the provisions of this regulation; it has filed an application, a copy of its Articles of
Incorporation and a copy of its Bylaws. However, Petitioner has not filed, as required by § 7-17 G. (3), a listing of its
officers and directors showing their names, ages, correct mailing addresses and business employment. For this reason, the
application request for an on-premise liquor license for this nonprofit organization is defective and must be denied.
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 has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1999), concerning
his residency and age, 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). In this case, the testimony of the protestant, who is knowledgeable of the problems which have
occurred at this location over a number of years, is credible. He has patrolled the area for over five years. He knows the
people who live in the area as well as the businesses. He knows Mr. and Mrs. McNeeley and is aware of the problems which
have occurred at their location. Both McNeeleys have worked at the location and have participated in its management,
notwithstanding who was the actual permit holder for the location. This court is concerned with the McNeeleys' prior
management because so many incidents have occurred both inside and outside their business.
Further, the court is concerned that the McNeeleys have not solicited membership, have not elected a board of directors and
have not negotiated a lease for the location. It appears that the applicants are attempting to obtain the liquor license without
satisfying the requirements for operating a private club. If the applicants were serious about operating a social club for the
benefit of firemen in that general locale, an application should have been filed by those individuals. Such was not done.
This court is not satisfied that Mr. and Mrs. McNeeley have displayed in the past those management skills and reasoning
needed to operate a club or a nonprofit club. The granting of this permit and license, even if the required statutory and
regulatory filing requirements had been met, is without any support as evidenced by their past history in operating a bar/club.
The concerns in protecting the safety and well-being of the residents who live in this neighborhood far outweigh the need
for this nonprofit club. The granting of this permit and license would contribute to further instability and engender crime in
the surrounding community.
14. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, as regulated by the State.
15. 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 license pursuant to S.C. Code Ann. § 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 not met its burden of proof in showing that it meets all of the statutory requirements for
holding a retail beer and wine permit and a sale and consumption ("mini-bottle") license as a nonprofit corporation at the
location. I further conclude that the proposed location is not a proper one for granting the permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Bob's Inc. for an on-premise beer and wine permit and a business sale and consumption
("mini-bottle") license as a nonprofit corporation at its location at 1012 Hanes Street, Spartanburg County, South Carolina is
denied, and
AND IT IS SO ORDERED.
__________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
May 25, 2000 |
