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. § 61-4-520 (Supp. 1999);
S.C. Code Ann. § 61-6-1820; S.C. Code Ann. § 1-23-600, et seq., (Supp. 1999); and S.C. Code Ann. Regs. 7-96 (1976) for a
contested case hearing. The Petitioner seeks an on-premises beer and wine permit and a sale and consumption (mini-bottle) license
for the location at 123 West Ashley Avenue, Folly Beach, South Carolina. This matter is presently before the Division because of
public protests by concerned citizens concerning the suitability of the proposed location. After notice to all parties, a hearing in this
matter was conducted on Wednesday, September 20, 2000 at the Folly Beach Municipal Courtroom, 21 Center Street, Folly Beach,
South Carolina. At the hearing, two Protestants, Edward D. Clair and C. J. McCarthy, made a Motion to Intervene, which I granted.
The applications for the on-premises beer and wine permit and the sale and consumption (minibottle) license are hereby granted,
subject to the restrictions set forth herein
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make
the following Findings of Fact by a preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit and a sale and consumption (minibottle) license for the location known
as the Purple Pelican, located at 123 West Ashley Avenue, Folly Beach, South Carolina.
2. The Respondent, South Carolina Department of Revenue, determined that the location and the Petitioner met all statutory
requirements and would have granted the permit and license but for the protests as to suitability of location.
3. Certain residences, namely those of the Protestants and Intervenors, are located in close proximity to the proposed location.
4. The proposed location is in an area zoned C-2 for commercial establishments. A Holiday Inn and a condominium complex with
more than 90 units are directly across the street.
5. There are no churches, schools, or playgrounds within close proximity of the proposed location.
6. The proposed location has seating capacity for at least forty (40) patrons simultaneously at tables for the service of meals.
7. The South Carolina Department of Health and Environmental Control issued a Class "A" restaurant license to the premises.
8. The applicant is of good moral character. The State Law Enforcement Division's criminal background investigation revealed no
criminal violations.
9. The Petitioner is at least twenty-one (21) years of age, a U.S. citizen, a citizen of the State of South Carolina, and has maintained
her principal residence in the State for at least thirty (30) days prior to the application.
10. Notice of the application appeared in The Post and Courier, a newspaper of general circulation in the area of the proposed
location, once a week for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.
11. The Petitioner is the daughter of the property owner, Katherine M. Posey, and the Petitioner leases the premises from Posey.
12. The Protestants and Intervenors primarily cited the noise emanating from live music at late hours as the reason the proposed
location is unsuitable. They also cited incidents of public drunkeness, foul language, and unsightly trash in the parking lot of the
formerly licensed restaurants at that location.
13. Administrative Law Judge John Geathers issued an Order on August 28, 1997 granting Posey a permit and license with the
restriction that there would be no "live music" outside Monday through Friday. 97-ALJ-17-0317-CC.
14. Since the 1997 Order, traffic at Folly Beach has increased considerably, and the outdoor deck at the proposed location has been
closed.
15. The City of Folly Beach has added additional police officers and responds promptly to reported complaints.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260
(Supp. 1999).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged
with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or
suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram,
276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App.
1984) (beer and wine permit); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption
license).
4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and
weight of any testimony offered.
5. 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 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. Byers v.
South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider whether there have been law
enforcement problems in the area. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also,
the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as the existence of
small children in the area.
6. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine
whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 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 alone to deny the application. 48
C.J.S. Intoxicating Liquors § 119 (1981).
8. S.C. Code Ann. § 61-4-525 (Supp. 1999) provides that a person residing in the county in which a beer and wine permit is requested
to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written
protest.
9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police
power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10. Standards for judging the suitability of a proposed location for the sale of beer and wine are not to be determined by the local
community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State of South
Carolina. The sale of beer, wine and liquor is a lawful enterprise in South Carolina, regulated by the State.
11. After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine and a sale
and consumption (minibottle) license with the following restrictions:
a. No live music outside at any time;
b. No live music inside after 12:00 a.m.;
c. The location will close no later than 12:00 a.m. on weekdays and no later than 2:00 a.m. Friday and Saturday nights; and
d. The Petitioner will provide a security guard to patrol the premises and parking lot from 9:00 p.m. until closing time on nights
when there is live music.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner's application for an on-premises beer and wine
permit and sale and consumption (minibottle) license for the location at 123 West Ashley Avenue, Folly Beach, South Carolina,
subject to the following restrictions:
a. No live music outside at any time;
b. No live music inside after 12:00 a.m.;
c. The location will close no later than 12:00 a.m. on weekdays and no later than 2:00 a.m. Friday and Saturday nights; and
d. The Petitioner will provide a security guard to patrol the premises and parking lot from 9:00 p.m. until closing time on nights
when there is live music.
AND IT IS SO ORDERED.
______________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
October 4, 2000
Columbia, South Carolina |
