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. 1999) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1999) for a contested case hearing. The Petitioner, John Hunt, III, seeks an on-premise beer and wine permit, and a club sale and consumption license on behalf of a nonprofit organization for Bourgeois Ghetto. The Department of Revenue (Department) filed a Motion to be Excused setting forth that but for the protests of the Protestants, this permit would have been issued. This motion was granted by my Order dated June 12, 2000. A hearing was held on this case on August 23, 2000, at the offices of 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 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, Protestants, and the Respondent.

2. Bourgeois Ghetto would be located at 243 Hudson Road in Dorchester County. The location was previously licensed for the sale of beer, wine and alcohol for approximately twenty (20) years. The Petitioner now seeks an on-premise beer and wine permit and a club sale and consumption license on behalf of a nonprofit organization. The Petitioner testified that his hours of operation would be Wednesday through Saturday, 9:00 p.m. until 2:00 a.m.

3. The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1999) 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 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. Hudson Road is the only paved access to a majority of the residents of a community named "Hudson Town." In the past, the Sheriff's Office has responded to numerous calls in the "Hudson Town" area. The area previously had three clubs operating within a one-half (½) mile radius on Hudson Road and the "Hudson Town" community. All of those locations closed around 1997 after the Sheriff's Office and local citizens devoted considerable efforts to clean up the area. Since that time, crime has significantly decreased in the area. However, there is still a great deal of criminal activity in the area. Additionally, one of the clubs on Hudson Road has reopened. If this proposed location is permitted, the area will have two locations that hold beer and wine permits within a one-half ( ½) mile of each other. Therefore, the Sheriff believes that if this location is again permitted that the prevalent criminal activity that existed before will return.

7. The Petitioner's location is situated upon three (3) acres and can accommodate one hundred fifty (150) parking spaces. The Petitioner doesn't deny that a drug problem exists in the area of his proposed location but he argues that he has taken steps to insure that his location will not attract the criminal element. For instance, he will have an off-duty police officer in the parking area

of his location during all hours in which the club sells beer, wine, or liquor, who can communicate with the other security personnel via two-way radio head phones. Additionally, the parking area of the location will be well lighted and the Petitioner will utilize surveillance cameras which will monitor and record the events in the parking area of the location. The Petitioner believes that these measures will insure that the location does not become a burden to law enforcement.

8. 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. None of the local residents appeared to protest the Petitioner receiving a permit or license at the proposed location. Moreover, there was no evidence that this specific location previously created a burden upon law enforcement in the past. The Sheriff's Office did establish that the community has changed since the previous permits. Furthermore, no action has ever been brought against a previous permit or license holder at this location asserting that the location was a nuisance to law enforcement.

The Sheriff's arguments appear to be based on a sincere concern for his community. His 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, taking into account the Petitioner's compliance 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 an on-premise beer and wine permit and a club sale and consumption license for a nonprofit organization only with the stipulations and restrictions set forth below. To the contrary, if the Petitioner does not comply with the stipulations and restrictions below, the proposed location will not be suitable because of the concerns set forth above.

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 at least three off-duty police officers 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 allow only females who are twenty-five (25) years of age or older and males who are thirty (30) years of age or older to enter the club during all hours in which the club sells beer, wine, or liquor.

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. 1999) 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. 1999) 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. 1999) 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. 1999) 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. 1999). 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. 1999) 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 John Hunt, III, for an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for Bourgeois Ghetto 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 restriction set forth below:

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.

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

October 16, 2000

Columbia, South Carolina