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.
§61-2-90 (Supp. 2000) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2000) for a contested case
hearing. The Petitioner, Marty Cauthen, is an agent for the Ironeagles Motorcycle Club which is a nonprofit
organization d/b/a The Eagles Nest. He seeks an on-premise beer and wine permit and a nonprofit private
club minibottle license for the club. 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 November 20, 2000. The Protestants are: the Lancaster Police Department; the
Forest Hills Crime Watch; and the Lancaster County Recreation Department. They filed a Motion for Leave
to Intervene which was granted at the hearing. A hearing was held on this case on February 22, 2001, at the
offices of the Division in Columbia, South Carolina.
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, 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. The Eagles Nest is located at 301 South Plantation Road, Lancaster, South Carolina. The location was
previously licensed for the sale of beer, wine and alcoholic beverages for approximately ten years. During
that period it was known as Cadillacs. The Petitioner now seeks an on-premise beer and wine permit and a
nonprofit private club minibottle license on behalf of a nonprofit organization. The Petitioner has been
operating under a temporary permit since May 2000. Mr. Cauthen testified that the club would be open
Thursday through Sunday with the hours of operation being:
Thursday 6:00 p.m. to 2:00 a.m.
Friday 7:00 p.m. to 2:00 a.m.
Saturday 7:00 p.m. to 2:00 a.m.
Sunday 2:00 a.m to 12:00 a.m.
3. The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2000) 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 also lawfully posted both at the
location and in a newspaper of general circulation. Additionally, Mr. Cauthen has no criminal record and is
of sufficient moral character to receive a beer and wine permit and sale and consumption license.
4. The proposed location is not unreasonably close to any church or school. However, the proposed
location is approximately 400 feet from a large recreation area operated by the Lancaster County Recreation
Commission. Nevertheless, the proposed location was licensed before the recreation area, including the
complex, was established.
5. Though the establishment has not hired any security personnel, there have been no problems to warrant it.
Additionally, Mr. Cauthen stipulated that he would hire security personnel if the need ever arose.
Furthermore, Mr. Cauthen testified that The Eagles Nest will deny or rescind the membership to those who
may cause trouble.
6. The Protestants' objection to the Petitioner's permit and license is based upon the concern that the club is
being established for members of the Ironeagles Motorcycle Club. The Protestants assert that the proposed
location may cause problems regarding noise, traffic, driving under the influence, alcohol consumption,
fights, and disorderly conduct. However, there was no evidence offered to establish that the Petitioner's
business did not have a reputation for peace and good order. Since May 2000 when the establishment
received a temporary permit, there has only been one incident involving police response. That incident
involved a domestic dispute between a couple cleaning the establishment in the morning. The establishment
was not open at the time.
Additionally, 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. In fact, 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.
Therefore, the proposed location is suitable for an on-premise beer and wine permit and a nonprofit private
club minibottle license.
CONCLUSIONS OF LAW
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. 2000) grants jurisdiction to the Administrative Law Judge Division to
hear contested cases under the Administrative Procedures Act. Additionally, S.C. Code Ann. § 61-2-260
(Supp. 2000) specifically grants the Administrative Law Judge Division the responsibilities to determine
contested matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance of an on-premise
beer and wine permit. Specifically, Section 61-4-520(1) provides in part that to receive a beer and wine
permit the Petitioner must show that "[t]he applicant, any partner or 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."
3. 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. 2000) 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. 2000).
Section 61-6-120 also requires that a location inside of a municipality licensed to sell liquor must be a
minimum of three hundred feet 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 (Supp. 2000).
4. S.C. Code Ann. 61-6-20(6) (Supp. 2000) 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.
5. 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). 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). 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 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).
6. 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).
7. It is relevant to consider the previous history of the location and to determine whether the testimony in
opposition to the granting of a permit is based on opinions, generalities and conclusions, or whether the case
is supported by facts. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App.
1984). Furthermore, the fact that the establishment has been licensed for the past ten years has bearing on
the consideration of suitability. There must be a showing that the location is somehow less suitable now than
in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). To the contrary, "[t]he respondents' plans
for the establishment have little bearing on the determination of suitability of location." Byers, 281 S.C. at
569, 316 S.E.2d at 707.
Therefore, the Petitioner meets the statutory requirements for holding a beer and wine permit and a nonprofit
private club minibottle license as a nonprofit organization at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Ironeagles Motorcycle Club, whose agent is Marty Cauthen, for an
on-premise beer and wine permit and a nonprofit private club minibottle license as a nonprofit organization
for The Eagles Nest be issued upon payment of the required fees and costs by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
April 12, 2001
Columbia, South Carolina |
