SC Administrative Law Court Decisions

This matter comes before me for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000). La Cosona, Inc., d/b/a La Cosona, 2640 Poinsette Highway, Greenville, South Carolina ("Petitioner") through its Director, Mauricio A. Lopez, filed applications for an on-premise beer and wine permit and an on-premise sale and consumption ("nonprofit private club mini-bottle") license for the premises located at 2640 Poinsette Highway, Greenville County, South Carolina ("location"). The applications were objected to by William Douglas Dill ("Protestant"). Also present at the hearing and testifying against the granting of the license and permit to Petitioner were: Sen. Michael Fair, Thomas Scott Phillip, an investigator with the Greenville County Sheriff's office, Roger H. Patterson, Sr. and Rep. Dwight A. Loftis. The South Carolina Department of Revenue ("Department") found that the applicant met all the statutory provisions but for the question of suitability of location. See S.C. Code Ann. § 61-4-520 (Supp. 2000) and S.C. Code Ann. § 61-6-1820 (Supp. 2000). Pursuant to an Order of this Court, the Department was not required to be present at the hearing.

A hearing was held on Monday, June 4, 2001 at the offices of the Administrative Law Judge Division, ("Division"), Columbia, South Carolina. The issue considered was the suitability of the proposed location.

The application requests are denied.

Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of the record. At the hearing, the Petitioner placed into the record, without objection, the following:

• A group of eight (8) photographs taken at the location.

Without objection, the Protestant placed into the record four exhibits:

• A group of four (4) photographs taken of the location and the highway.
• A group of four (4) photographs taken of the building at the location.
• A group of four (4) photographs taken of the building at the location.
• A newspaper article dated January 19, 2001.

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 or protestants, I make the following findings of fact by a preponderance of the evidence:

General

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and subject matter of the hearing was timely given to all parties and the Protestant.

3. The Petitioner, La Cosona, Inc., d/b/a La Cosona, by and through its Director Mauricio A. Lopez, is seeking an on-premise beer and wine permit and a sale and consumption license for a nonprofit private club known as "La Cosona" located at 2640 Poinsette Highway, Greenville County, South Carolina.

4. Articles of Incorporation were filed with the office of the Secretary of State for South Carolina in 2000 and the Secretary of State issued a Certificate of Incorporation for La Cosona, Inc. as a nonprofit corporation in South Carolina.

5. Petitioner filed its By-Laws with the Department on October 16, 2000. They define Petitioner's offices, fiscal year, purposes, membership qualifications, membership dues, personnel, officers with their functions and duties, board of directors, meetings, amendments to the By-Laws, and procedures regarding the dissolution of the corporation, i.e., that upon dissolution of Petitioner, all remaining assets shall be distributed to another nonprofit organization designated by the Board of Directors.

6. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

7. Mauricio A. Lopez is a person of good moral character and has no record of any criminal convictions.

8. Notice of this application has appeared at least once a week for three (3) consecutive weeks in The Greenville News, a newspaper of general circulation in the local area where the Petitioner proposes to engage in this business.

• Petitioner is applying for the permit and liquor license for an Hispanic private social

club. Petitioner's wife testified at the hearing that the club will be a Latin club, with DJ music and dancing. She and her husband expect that the club will have as many as 100 to 150 customers on a busy night.

• The club will be open on Fridays and Saturdays in the beginning and will open

at 7:00 p.m. and close at 2:00 or 3:00 a.m.

Applicant's Personal Information and Work History

11. Mauricio A. Lopez is a resident and citizen of the County of Greenville, State of South Carolina, where he has lived for the last eleven years. He is a resident and citizen of the United States. He was born June 7, 1966 in the country of Colombia; presently he lives at 104 Moss Point Drive, Greenville, South Carolina. He is married to Angela Lopez, who is a legal resident alien.

12. Neither Mr. or Mrs. Lopez have ever been issued nor held a beer and wine permit, liquor license, or a business sale and consumption license. Thus, neither have ever had any such permit or license revoked.

13. Mrs. Lopez intends to assist her husband in the management and operation of the club when she is not working with her employer, a Banana Republic store.

14. Mr. Lopez works with Tabarras, Inc. in Greenville County, South Carolina as a drywall hanger.

15. In 1983 in his native county of Colombia, Mr. Lopez worked in a liquor store and bar.

Location

16. The location of the proposed private club is within a highly commercial and residential neighborhood. It is situated and fronts on Poinsette Highway, which is four lanes and which leads from Cherry Point shopping center past Furman University toward the town of Travelers Rest. It is also known as Highway 25 which goes up toward Flat Rock. The highway is heavily traveled during the day and the evening hours.

17. The location is owned by Mr. John G. Cheros, an attorney in Greenville, South Carolina. On October 2, 2000, Mauricio Lopez entered into a written lease agreement for 2640 Poinsette Highway, Greenville, South Carolina. Article 2 of the lease provides that its term shall commence upon Lessee's (Mr. Lopez) obtaining liquor, beer and wine licenses for the premises and shall continue for two years thereafter.

18. The property consists of the building and land as shown on the exhibits introduced into the record. The building has been utilized as a pub or bar in the past but is not licensed or permitted at present. Pursuant to Article 4 of the lease agreement, Mr. Lopez intends to use the location for the operation of a restaurant/bar.

19. The building at the location is in poor condition. However, Petitioner intends to make repairs and clean up the outside. Pursuant to Article 5 of the lease, Mr. Lopez is responsible for keeping the premises in good condition and in compliance with all governmental code requirements.

20. Other businesses in the general area are a Wilco gas station, the New China Restaurant, the Pizza Hut, Bonats Food Mart and a Monterrey Mexican Restaurant.

21. It is not the intent of Petitioner to disturb the peace. Further, Mr. Lopez agrees that he has the responsibility not to let anyone leave the premises intoxicated. He agrees that no customers will be allowed outside the building, no music speakers will be allowed on the exterior of the building and the exterior doors at the building will remain closed. Further, he agrees to police the outside area to prevent loitering and to keep the area clean of refuse and debris.

22. There are a number of single family houses and several churches in the general vicinity of this location. However, no church, school or playground is within five hundred (500) feet of the location.

23. Across Poinsette Highway from the proposed location is an apartment complex where many families live.

Previous History/Problems

24. Previously the proposed location has been operated as a club. Loud speakers have been placed on the exterior, loitering has occurred outside and trash has accumulated outside. Further, there have been problems with drug sales and usage at the location since it was built in 1987. Customers at the location have driven vehicles onto Poinsette Highway in the past while intoxicated. Thirty three thousand (33,000) vehicles pass in front of this location daily.

25. The building is not soundproof and previous operators of a club there have placed mattresses against the outside walls in an effort to keep the sound from bothering neighbors.

26. Throughout the last five years the Greenville County Sheriff's Office has received numerous complaints from citizens nearby concerning noise and litter at the location.

Concerns by the Protestant and Others at the Hearing

27. The concerns expressed by the Protestant Mr. Dill (a neighbor), Sen. Fair, Mr. Patterson and Rep. Loftis were of excessive noise at the location, patrons of the bar entering a heavily traveled major highway while intoxicated, and patrons driving upon the highways of Greenville County while under the influence, as well as excessive littering and loitering.

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, as regulated by the State.

3. S.C. Code Ann. § 61-4-520 (Supp. 1999), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

1) The applicant, any partner of 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.

2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4) The applicant, within two years before the date of application, has not had revoked a beer or wine permit issued to him.

5) The applicant is twenty-one years of age or older.

6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.

8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section . An applicant for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2000), which sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license, provides as follows:

The Department may issue a license under subarticle 1 of this article upon finding:

1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.

2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace and good order in its community, and its principals are of good moral character.

3) As to business establishments or locations established after November 7, 1962, § 61-6-120 has been complied with.

4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.

5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of license sought;

(b) tell an interested person where to protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

6) The applicant is twenty-one years of age or older.

7) The applicant is a legal resident of the United States, has been a resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in this State for at least thirty days before the date of application.

8) The applicant has not been convicted of a felony within ten years of the date of application.

5. S.C. Code Ann. § 61-6-120 (Supp. 2000) provides that a liquor license shall not be issued if the place of business to be licensed is located within three hundred feet of any church, school, or playground situated within a municipality, or within five hundred feet of any church, school, or playground situated outside of a municipality. No churches, schools, or playgrounds are located within the prescribed proximity to render the proposed location unsuitable based on this distance requirement. Faith Baptist Church is approximately 1.5 miles from the location.

6. A license for the sale and consumption of alcoholic beverages must not be granted unless the location will be operated as either a bona fide nonprofit organization or a bona fide business engaged primarily and substantially in food preparation and service or the furnishing of lodging. It appears that Mr. Lopez has every intent to operate this club as a private nonprofit club.

7. S.C. Code Ann. § 61-6-20 (2) and (4) (Supp. 2000), which define a bona fide business engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, read in part as follows:

As used in the ABC Act, unless the context clearly requires otherwise:

(2) "Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

. . . .

(4) "Furnishing lodging" means those businesses which rent accommodations for lodging to the public on a regular basis consisting of not less than twenty rooms.

Petitioner is not applying for a liquor license at a location which is engaged primarily in the preparation and serving of food or the business of furnishing lodging.

8. S.C. Code Ann. § 61-6-1600 (Supp. 2000) provides as follows:

Nonprofit organizations which are licensed by the department under this article may sell alcoholic liquors in mini-bottles. Members or guests of members of these organizations may consume alcoholic liquors sold in mini-bottles upon the premises between the hours of ten o'clock in the morning and two o'clock the following morning.

9. A license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 2000)

if: (1) the applicant is not a suitable person to be licensed; (2) the store or place of business to be occupied by the applicant is not a suitable place; or (3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated municipality, or other community.

10. Petitioner has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2000), concerning his residency and age, as well as the publication and notice requirements.

11. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the

fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

12. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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 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. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

13. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the Protestant and others at the hearing is persuasive and credible. Mr. Dill has lived in this neighborhood for forty or more years. He has listened to loud music and had to deal with loitering and the accumulation of trash at the location. The location has been an eyesore for him and his family to have to look at each day. He has not been able to enjoy his home in a peaceful atmosphere. Sen. Fair lives within three miles of the location. He is concerned about the potential traffic problem and the threat to public safety from cars exiting the location on Poinsette Highway. The Greenville County Sheriff's Office has received numerous complaints concerning noise at the location throughout the last four to five years. Mr. Patterson testified that there is not sufficient proper law enforcement in Greenville County to provide appropriate police protection to a bar at this location. He testified that there are eleven ABC licenses in the county per each deputy sheriff. Rep. Loftis lived on the Poinsette Highway from 1976 through 1988. He stated that the traffic on the highway is congested. He is concerned with traffic problems and automobile accidents. I find that each of these witnesses are credible. They either live in the area or are personally familiar with the area, and are personally aware of the many problems which have originated at this location in the past. Although the intentions of the Petitioner may be good, the past history of this location, together with traffic concerns, the issue of public safety, the potential noise problems and the proximity of the location to residences lead this court to conclude that this location is not suitable for the granting of the license and permit.

The concerns in protecting the safety and well-being both of the residents who live in this neighborhood and the persons who travel Poinsette Highway far outweigh the need for this nonprofit club. The granting of this permit and license would contribute to further instability and engender crime in the surrounding community. Therefore, the permit and license requests must be denied.

14. For all the foregoing reasons, I conclude that the Petitioner has not met its burden of proof in showing that it meets all of the statutory requirements for holding an on-premise beer and wine permit and a sale and consumption ("minibottle") license as a nonprofit private club at its location at 2640 Poinsette Highway, Greenville, South Carolina. I further conclude that the proposed location is not a proper one for granting the permit and license.

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

ORDERED that the application of La Cosona, Inc., d/b/a La Cosona, 2640 Poinsette Highway, Greenville, South Carolina, for an on-premise beer and wine permit and a business sale and consumption ("mini-bottle") license as a nonprofit corporation is denied.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

June 26, 2001

Columbia, South Carolina