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. 2000) and S. C. Code Ann. § 1-23-310 et seq. (1986 and Supp. 2000) for a contested case hearing. The Petitioner seeks a nonprofit private club minibottle license and an on-premise beer and wine permit. The Respondent made a Motion to be Excused stating that but for the protests it received, these applications would have been granted. This motion was granted by my Order dated January 31, 2001. A hearing was held on April 10, 2001, 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 Petitioner and the Protestants, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and the South Carolina Department of Revenue.

2. The Petitioner seeks a nonprofit private club minibottle license and an on-premise beer and wine permit for Club Carolina, Inc. (the Club), located at 3019 Highway 301 S., Hamer, South Carolina. Mr. Thomas Graham is the president of Club Carolina which is incorporated under the laws of South Carolina. Mr. Graham stated that the Club is currently open and would continue to operate on Friday and Saturday nights until 4:00 a.m. Every night the Club is open, he is there until closing. He agrees that he would continue to stay on the premises when the Club is open.

Mr. Douglas Pernell is the vice president of the corporation. He is also a captain with the Dillon County Sheriff's Office.

3. The qualifications set forth in S. C. Code Ann. § 61-4-520 (Supp. 2000) concerning the residency and age of the officers of the Club are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. There are no schools, churches, or playgrounds located within 500 feet of this location.

5. The Petitioner's principals and applicants do not have criminal records and are of sufficient moral character to receive a nonprofit private club minibottle license and a beer and wine permit.

6. The manager of the Club is James Washington. He has a criminal conviction in the past ten years for possession of cocaine. Nevertheless, Mr. Washington is not a business owner, general partner, principal or officer in the business. It does not appear that Mr. Washington has actual control and management of the Club. Furthermore, Mr. Washington's involvement in the Club is declining because of his involvement in other ventures.

7. At the time of application, this location had an on-premise beer and wine permit and was known as Lucky Winners. There is also another licensed establishment, Reflections, approximately 200 feet from the Club.

8. Mr. Floyd Griffith and Mr. Alexander McDuffie appeared to protest this permit. They contend that the proposed location is unsuitable because of the problems the business has caused since it opened in September 2000. Specifically, they contend that the following aspects of the proposed location render it unsuitable for a license or permit:

a. Loud music coming from the establishment;

b. Noise from patrons in the parking area; and

c. Criminal activity in the parking area.

The proposed location is a metal building. It is located approximately five miles north of Dillon, South Carolina. Mr. Griffith owns the trailer park across the street from the Club and Mr. McDuffie's residence is approximately 2000 feet from the location.

The evidence did not establish that the proposed location will create a burden upon law enforcement or create an overall adverse impact on the community because of increased criminal activity. Nonetheless, videotapes of the Club's parking lot were filmed from Mr. Griffith's trailer park on two consecutive Saturday nights by Private Investigator Charles Ruth. The videotapes showed that there was a fair amount of noise coming from the Club. Furthermore, though extra insulation has been installed on the side of the building toward Mr. McDuffie's home and Mr. Griffith's trailer park, the evidence reflected that occasionally the music from inside the Club is noticeably audible even in Mr. McDuffie's home when all the doors and windows are shut. Additionally, there is also significant noise from the patrons outside in the parking lot of the Club.

9. The location poses a potential burden upon the residents because of the noise that has occurred in this area in the past. Nevertheless, with 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 only suitable for an on-premise beer and wine permit and a nonprofit minibottle license with the restrictions set forth below.

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.

2. S.C. Code Ann. § 61-2-260 (Supp. 2000) 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. 2000) sets forth the requirements for the issuance of a 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. 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 forth in S.C. Code Ann. § 61-6-120 (Supp. 2000). Section 61-6-120 also requires that a location outside of a municipality licensed to sell liquor must be a minimum of 500 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.

5. 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 nonprofit organization 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 proposed business location of a Petitioner for a permit to sell beer and wine 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 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).

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 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. In considering the suitability of a location, it is relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). The fact that the establishment was licensed at the time of this application has bearing on the consideration of suitability. Also, the fact that there is a licensed establishment adjacent to the location has bearing on the consideration of suitability. There must be a showing that the location is somehow less suitable now than in the past.

11. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, privileges granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Judge Division, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) which authorizes the imposition of restrictions on permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

12. The Petitioner meets the statutory requirements for holding an on-premise beer and wine permit and a nonprofit private club minibottle license at the proposed location with the following restrictions.

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

ORDERED that the on-premise beer and wine permit application and the nonprofit private club minibottle license of Club Carolina be granted upon the President of the Petitioner corporation signing a written Agreement with the South Carolina Department of Revenue agreeing to the restrictions that are set forth below:

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

2. The Petitioner and its employees shall monitor the parking area to insure that no public disturbance is created.

3. The Petitioner and its employees shall not allow excessive noise to emanate from Club Carolina. After 10:00 a.m., any noise that is noticeably audible within any local residence with closed doors and windows shall be considered excessive. Furthermore, for the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision.

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 an on-premise beer and wine permit and a nonprofit private club minibottle license upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

May 2, 2001

Columbia, South Carolina