ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-310 (Supp.
2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a contested case hearing. The Petitioner, Irvin M.. Mumford, d/b/a
Fresh Sound Productions, Essence, seeks an on-premises beer and wine permit and a business sale and consumption
license for his establishment at 8605B Two Notch Road, Columbia, South Carolina.
The South Carolina Department of Revenue (Department) filed a Motion to be Excused from participating in the hearing,
stating that the Department would have granted the permit but for the protests of the application. This Motion was granted
by Order dated December 12, 2000.
After timely notice to the parties and the Protestants, a hearing was held on January 29, 2001 at the ALJD in Columbia,
South Carolina. The Protestants did not move to intervene as a party.
FINDINGS OF FACTHaving carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find
the following by a preponderance of the evidence:
1. Notice of the time, date, place, and subject matter of the hearing was given to all the parties in a timely manner.
2. Petitioner plans to operate a restaurant and jazz club at the proposed location. Petitioner plans to serve meals on the
evenings that the location are open. Petitioner has arranged for valet parking to be provided to the customers to ensure
adequate and safe parking. There will be security officers inside and outside of the proposed location. Petitioner has
checked the sound insulation and has been assured by a professional that noise and music will not escape the building.
3. Petitioner plans the days and hours of operation of the location to be Wednesday through Saturday from 8:00 p.m.
until 11:30 p.m. or 12:00 midnight.
4. To date, Petitioner has approximately $134,000.00 invested in the business.
5. Mr. L. B. Harwick is a protestant in this case and objects to the issuance of this permit and license. Mr. Harwick
owns a business across the street from the proposed location. He is concerned about the clientele that this night club will
attract and the increase in traffic on Two Notch Road.
6. Mr. Edward Hart owns a carpet store across the street from the proposed location. Mr. Hart objects to the issuance
of this permit and license because he is concerned about loitering and littering in the parking lot and street.
7. Mr. John Knox owns a liquor store and car wash in the area of the proposed location. Mr. Knox is concerned about
vandalism that could occur to his stores and other stores in the area and he is also concerned about on-premise consumption
of alcohol.
8. Mr. James McMillan operates a bakery approximately one block from the proposed location. Mr. McMillan is
concerned about the type of atmosphere that this night club will create in the neighborhood. Also, Mr. McMillan is
concerned about littering in his parking lot and an increase in traffic on Two Notch Road.
9. There is a residential neighborhood, Forestwood Subdivision, located in close proximity to the proposed location.
However, none of these residents appeared to protest the issuance of the permit and license.
10. 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 applicant 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.
11. The Petitioner is of sufficient moral character to receive a beer and wine permit and a business sale and consumption
license.
12. There is no church, school, or public playground within 300 feet of the proposed location. 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 subject matter jurisdiction to hear and to determine this
contested case pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2000) and S.C. Code Ann. § 61-2-260 (Supp. 2000).
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.
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.
4. Under S.C. Code Ann. § 61-4-520 (Supp. 2000), the location of the proposed place of business must be proper.
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.E2d 118 (1981).
5. 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).
6. The determination of the 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); Schudel v. South
Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
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 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).
8. I find that the evidence did not establish that the granting of the permit and license for this location would have an
adverse impact on the community. In light of the Petitioner's agreement to abide by the conditions set forth below, I find
that the proposed location is suitable for the on-premise beer and wine permit and a sale and consumption license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Irvin M. Mumford, d/b/a Fresh Sound Productions, Essence, for an on-premise beer
and wine permit and a business sale and consumption license be granted, subject to the conditions set forth below:
1. Adult entertainment, topless dancing, etc. will not be permitted on the premises at any time.
2. Adequate off street parking shall be provided for patrons of the business and no outside loitering of patrons will be
allowed.
3. There shall be no outside speakers and the level of music inside the business shall be regulated so as not to disturb
the neighbors.
4. The restrictions set forth above shall remain in effect and be binding upon the Petitioner, his heirs and assigns, and
anyone or any entity or management company operating this business under Petitioner's permit and licence.
IT IS FURTHER ORDERED that a violation of any of the above 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 business sale and
consumption license upon payment of the required fees and costs by the Petitioner.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
February 5, 2001
Columbia, South Carolina |
