SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-2-90 (Supp. 1998) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1998) for a contested case hearing. The Petitioner, Ellis Rogers, III, seeks an on-premise beer and wine permit, and a club sale and consumption license on behalf of a nonprofit organization for All New Chocolate City. The Department of Revenue made a Motion to be Excused which was granted by my Order dated April 24, 2000. Thereafter, Respondent Chesterfield County Sheriff's Office made a Motion to Intervene which I granted on June 13, 2000. A hearing was held on this case on June 28, 2000, at the Division in Columbia, South Carolina.

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(s), 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, Protestants, and the Respondents.

2. All New Chocolate City is located in Cheraw, South Carolina at 1723 West Market Street. The location was previously operated as a business with an on-premise beer and wine permit since 1950. The Petitioner now seeks another on-premise beer and wine permit to sell beer publicly on Saturdays and a club sale and consumption license on behalf of a nonprofit organization to sell beer and alcohol on Sunday. The Petitioner testified that his hours of operation would be as follows:

a. 12:00 a.m. until 3:30 a.m. on Saturday; and

b. 4:00 p.m. until 8:00 p.m. on Sunday.

3. The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1998) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit and sale and consumption license. Additionally, there was no evidence offered to establish that the Petitioner's business did not have a reputation for peace and good order.

5. The proposed location is not unreasonably close to any church, school or playground.

6. The Respondent Sheriff's Office objects to the issuance of a permit or license to the Petitioner because the Sheriff's Office believes issuing the permit or license would result in an increase in criminal activity in the community. In the past, the Sheriff's Office has responded to numerous calls at this location. There are 10 to 15 similar establishments in Chesterfield County which require much less of the Sheriff's Office's time than the proposed location. Therefore, because this proposed location has required much more of the Sheriff's Office's attention, the Sheriff's Office contends that this location would be an undue burden upon law enforcement. However, since beginning his temporary operation of the club on December 16, 1999, the complaints to the Sheriff's Department have been limited to three complaints against Petitioner for playing music loudly at the proposed location. Those calls, without concerns from the local residences, do not establish that the proposed location is unsuitable.

Additionally, since operating this location under a temporary permit, the Petitioner has allowed the sale and delivery of beer and liquor during restricted hours, as prohibited by S.C. Code Ann. § 61-6-1600 (Supp. 1998) and 23 S.C. Code Regs. 7-86 (1976).

7. The Petitioner's location can accommodate 234 people. However, the Petitioner's parking area has only 80 parking spaces. When those spaces are filled, his patrons often park in the adjacent streets and driveways. This overflow of cars creates a nuisance to the community. Therefore, if the Petitioner allows more people in his club than his parking lot can accommodate, the location is not suitable for either a permit or license.

8. The fact that the Petitioner has already violated the statutory provisions regulating the sale of alcohol and alcoholic beverages at the proposed location is certainly a cause for concern. Furthermore, the Petitioner seeks to operate in the early morning hours on Saturday after most bars close on Friday. Those hours of operation have the propensity to invite individuals who create difficulties for law enforcement. Moreover, the Petitioner's location is close to several residences. To the contrary, the Department of Revenue, which is the governmental body charged with regulating and enforcing violations concerning permits and licenses involving the sale of beer, wine or alcohol, did not object to the granting of a permit or license in this case. Furthermore, this location has been permitted in the past. The Sheriff's Office did not establish that the community has changed since the previous permits so as to warrant heightened protection. In fact, the residences are virtually the same now as they were when the location was previously permitted. None of the local residences appeared to protest the Petitioner receiving a permit or license at the proposed location. In fact, two of the local residents appeared in support of the permit and license. Moreover, though the previous business at the proposed location has created burdens upon law enforcement in the past, no action has ever been brought against that permit or license holder for law enforcement problems.

The Sheriff's Office's arguments appear to be based on a sincere concern for their community. Their concerns certainly have made me reflect at length in deciding whether or not to grant the Petitioner's requested permit or license. However, the evidence did not establish that the granting of a permit or license for this location will augment the criminal activity in this area. If that change occurs after the Petitioner receives his permit or license, the proposed location would no longer be suitable and the Sheriff could properly bring an action to revoke the Petitioner's permit and license. Furthermore, if the Petitioner complies with the stipulations and the restrictions set forth below, the evidence did not establish that this business would change the integrity of the neighborhood or create an overall adverse impact on the community.

Therefore, the proposed location is suitable for the sale of beer and wine on-premise only with the restrictions set forth below. To the contrary, if the Petitioner does not comply with the stipulations and restrictions below, the proposed location is simply not suitable because of the concerns set forth above. As usual, in most of these application cases, the Petitioner contends that he will insure that this location is not a burden upon law enforcement.

The Petitioner stipulated at the hearing that he would abide by the following restrictions if granted a permit and license:

1. The Petitioner will employ professional security personnel to be present on the business premises and patrol the club parking lot during all hours in which the club sells beer, wine, or liquor.

2. The Petitioner will operate metal detectors at all entrances of the location while serving beer, wine or liquor.

3. The Petitioner will only serve beer or wine to the public under the permit at the location on Saturday from 12:00 a.m. until 3:30 a.m. The Petitioner will also operate a private club on Sunday between the hours of 4:00 p.m. until 8:00 p.m. on Sunday.

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 1998) 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. 1998) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1998) sets forth the requirements for the issuance of an on-premise beer and wine permit.

4. In addition to the requirements set forth above, 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. 1998) are met. That section requires that the principals and applicants must not only be of good moral character, but they must also have a reputation for peace and good order. Additionally, Section 61-6-1820 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. 1998). Section 61-6-120 also requires that a location outside of a municipality licensed to sell liquor must be a minimum of five hundred feet (500') from any church, school, or playground. The distance is determined by following "the shortest route of an ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground. . . ." S.C. Code Ann. §61-6-120.

5. S.C. Code Ann. 61-6-20(6) (Supp. 1998) establishes that a nonprofit organization is not open to the general public and only the members and guests of the club may consume alcoholic beverages upon the premises.

6. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981).

7. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the Petitioner and the proposed business location for a license or permit using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984).

8. 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).

9. 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 or license 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).

10. The Petitioner meets the statutory requirements for holding a beer and wine permit and a club sale and consumption license as a nonprofit organization at the proposed location with the above stipulations and the following restrictions.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application of Ellis Rogers, III, for an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for All New Chocolate City be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to strictly adhere to the above stipulations and the restrictions that are set forth below:

1. The Petitioner or his employees shall prohibit loitering and the consumption of beer, wine or liquor in the parking lot area of the proposed location.

2. The Petitioner will limit the number of patrons in his location to the available parking that he can provide in his parking lot.

3. The Petitioner will ensure that music played at the location will not be heard within the homes of the local residences.

IT IS FURTHER ORDERED that a violation of any of the above stipulations or 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 issue a beer and wine permit and a club sale and consumption license as a nonprofit organization upon payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

August 29, 2000

Columbia, South Carolina