ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2000). LDL, Inc., d/b/a Darnell's
("Petitioner"), through its President, Larry D. Lane, Sr., filed an application for an on-premises beer and wine
permit and a sale and consumption license ("minibottle license") for the premises located at 6000 Augusta
Road, Greenville County, South Carolina ("proposed location").
The application was protested by numerous individuals who live in the South Forest Estates subdivision, as
well as the Honorable Ralph Anderson of Senate District No. 7, the Honorable Lewis R. Vaughn as Chairman
of the Greenville County Legislative Delegation, and the Honorable Dozier Brooks as Chairman of the
Greenville County Council ("Protestants").
The South Carolina Department of Revenue ("Department") filed a Motion to be Excused, stating the
Department would have issued the permit and license but for the protest of the application. According to the
Department, Petitioner met all the statutory provisions except the unanswered question of suitability of the
proposed location. See S.C. Code Ann. § 61-4-520 (Supp. 2000); S.C. Code Ann. § 61-6-1820 (Supp. 2000).
In the Notice of Hearing dated July 10, 2001, I denied the Department's Motion to be Excused.
On August 7, 2001, Helen Irby and Marion Simpson ("Intervenors") filed a Motion for Leave to Intervene,
which was granted on August 15, 2001.
On August 24, 2001, a contested case hearing was held at the Greenville County Courthouse, 305 East North
Street, Greenville, South Carolina. The only issue considered was the suitability of the proposed location.
Appearing at the hearing and offering testimony were Larry D. Lane, Sr., numerous Protestants, and Marion
Simpson. Captain Bruce Cannon, head of the Selective Enforcement Division of the Greenville County
Sheriff's Office, also appeared at the hearing and testified on behalf of the Sheriff's Office in opposition of
the application. The Department offered no testimony.
Based on the testimony at the hearing and the certified copies of documents forwarded by the Department and
entered into the record, I find that the application should be denied.
EXHIBITS
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, five large photographs taken at the
proposed location.
At the hearing, the Respondents/Intervenors placed into the record, without objection, seven photographs
taken at the proposed location, in yards in the adjoining neighborhood, and in front of a nearby church; a
Greenville County Sheriff's Office "Calls for Service" Summary; and an aerial photograph showing the
residential area surrounding the proposed location.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the
hearing and taking into consideration the burden of persuasion by the parties, I make the following findings of
fact by a preponderance of the evidence:
- Notice of the date, time, place, and subject matter of the hearing was given to the parties, the Intervenors,
and the Protestants in a timely manner.
- Petitioner, through its President, Larry D. Lane, Sr., filed an application dated March 19, 2001, for an on-premises beer and wine permit and a sale and consumption license for the premises located at 6000
Augusta Road, Greenville County, South Carolina. Michael C. Lane is the Vice President of LDL, Inc.
Gwendolyn R. Lane is the Secretary and Treasurer of LDL, Inc. The permit and license would be issued in
the name of Larry D. Lane, Sr.
- On June 3, 1997, Articles of Incorporation were filed with the office of the Secretary of State for South
Carolina. On that same day, the Secretary of State issued a Certificate of Incorporation for LDL, Inc. as a
nonprofit corporation in South Carolina.
- When Petitioner filed its application with the Department, Petitioner attached the By-Laws of LDL, Inc.
and an Amendment to the By-Laws. According to the By-Laws, the charter members of LDL, Inc. were
Larry D. Lane, Bobby Griffin, Michael Lane, Gerald Lane, James Murphy, and Eric Griffin. The By-Laws
define the corporation's offices, fiscal year, purposes, membership qualifications, membership dues,
personnel, officers with their functions and duties, board of directors, meetings, procedure for making
amendments to the By-Laws, and procedure regarding the dissolution of the corporation, i.e., upon
dissolution, all remaining assets will be distributed to another nonprofit organization designated by the
Board of Directors. The Amendment to the By-Laws amended the purpose of the corporation.
- Notice of this application appeared at least once a week for three consecutive weeks in The Greenville
News, a newspaper of general circulation in the local area where Petitioner intends to operate this
business.
- Notice of the application also was given by displaying a sign for a minimum of fifteen days at the site of
the location.
- Mr. Lane was born on December 25, 1956, and is forty-four years of age. He has lived in South Carolina
his entire life and has lived at 2 Crofton Drive in Greenville, South Carolina for at least thirty days.
- Mr. Lane has been employed with the Norfolk Southern Railway for the last sixteen years and has been a
member of the South Carolina National Guard for the last twenty-four years.
- Mr. Lane has never had revoked a beer or wine permit issued to him. Mr. Lane also has no criminal
record.
- I find that Mr. Lane has met the residency, age, and notice requirements for holding a beer and wine
permit and a minibottle license. I further find that Mr. Lane is of good moral character.
- Prior to the filing of this application, Mr. Lane operated a private nonprofit organization/club, also called
Darnell's, at 3505 Augusta Road in Greenville County, not far from the proposed location. When the
building at that location burned, Mr. Lane decided to open a club at the proposed location.
- The proposed location is in a small shopping center in a residential/commercial area and is situated at the
intersection of Augusta Road (Highway 25) and Stratford Road. The shopping center fronts on Augusta
Road, separated therefrom by a large asphalt parking lot. Augusta Road is a four-lane highway, running
from Greenville to Greenwood. The segment of Augusta Road in front of the shopping center has a grassy
median separating the two lanes that run northeast from the two lanes that run southwest. Stratford Road
runs along the northeastern side of the proposed location and is separated from the proposed location only
by an asphalt parking lot.
- The proposed location is outside the city limits of Greenville but within the jurisdiction of Greenville
County. The Greenville County Sheriff's Office, therefore, would be responsible for providing police
protection to the proposed location.
- The proposed location formerly was occupied by a Community Cash Grocery Store. There are four other
businesses within the shopping center - a coin laundromat, a vacant restaurant, a gun works store, and
Liberty Imports.
- There are commercial properties and businesses located along both sides of Augusta Road in the vicinity
of the proposed location. Directly across Augusta Road from the proposed location are four residences.
Also along that side of Augusta Road, there are several car sales lots, an automobile towing company, and
the "All Star Club," a small private club that has an on-premises beer and wine permit and a minibottle
license.
- Directly across Stratford Road from the proposed location, at the intersection of Stratford Road and
Augusta Road, there is a convenience store/gas station called the Hot Spot. The store sells beer and wine
for off-premises consumption.
- Directly behind the proposed location are four residences, which front on West Belvedere Road. They are
separated from the location by a thin line of trees or woods. These homes are within the residential
community of South Forest Estates. Many of the residents in this community have lived there for more
than twenty years. The residents of this community access their neighborhood via Stratford Road.
- A church is located approximately 1100 feet from the proposed location. A daycare center is located
approximately 1300 feet from the proposed location. See SLED drawing.
- Augusta Road is a busy thoroughfare and is heavily traveled by vehicular traffic in front of the proposed
location.
- According to the SLED report, there are four large light poles in the parking lot at the proposed location.
The proposed location has approximately 300 parking spaces. The proposed location also has exterior
lighting.
- According to the SLED report, Mr. Lane intends to operate the club from 9:00 p.m. until 3:00 a.m. on
Thursday and Friday nights and 9:00 p.m. until 2:00 a.m. on Saturday night. He also may operate the club
sometimes on Sundays. Mr. Lane testified at the hearing, however, that he intends to operate the club
from 10:00 p.m. until 3:30 a.m. on Thursday and Friday nights only. He does not intend to open any other
times during the week.
- Mr. Lane intends to renovate the building at the proposed location. He intends to add more insulation,
sheetrock the walls, and carpet the floors in an attempt to minimize the amount of noise emanating from
the sound equipment and patrons inside the building.
- Mr. Lane intends to erect a solid fence, approximately eight to ten feet high, along Stratford Road in an
effort to shield the neighbors from the noise and view of the location. He also intends to install gates in
the fence to prevent patrons from using Stratford Road to access the parking lot of the proposed location.
- Mr. Lane intends to employ two licensed security guards to patrol the parking areas via golf carts at all
times the club is open for business.
- A large group of people, mostly residents of South Forest Estates, appeared at the hearing of this case to
protest the issuance of the beer and wine permit and minibottle license. The Protestants do not want this
club in their neighborhood nor do they want to have to drive by all its patrons to go to their homes. They
want to live in peace and quiet. They want to enjoy and protect their homes and families.
- Marion D. Simpson, an Intervenor, is fifty-eight years of age and is retired from the United States
Government. His home is located at 100 Stratford Road. He can see the parking lot of the proposed
location from his yard. At the hearing, Mr. Simpson testified in opposition of issuing the permit and
license to the proposed location. He testified that on the day of the hearing, he could see trash at the
proposed location. On one occasion when driving down Stratford Road with his grandchildren, Mr.
Simpson saw people cruising in the parking lot of the proposed location; he was afraid for his safety as
well as that of his grandchildren. Mr. Simpson also is afraid for the children who live in the
neighborhood. Buses enter and exit, picking up children and dropping them off after school. According to
Mr. Simpson, people ride down the streets of South Forest Estates in their vehicles and make ugly
comments to the residents. He testified that there are approximately 500 family homes in the general
vicinity of the proposed location. Although the residents are afraid, many of them cannot move elsewhere
for financial reasons. He wants the quality of life in the neighborhood to improve.
- Joe Clearwater is fifty-eight years of age and lives with his family at 117 West Belvedere Road in South
Forest Estates. He has owned his home there for the last twenty-eight years. His home is situated almost
directly behind the proposed location. At the hearing, Mr. Clearwater testified that on many occasions he
has noticed twenty-five to thirty people congregating in the parking lot of the proposed location. He has
listened to loud music all night and has had to deal with people driving up and down his street at all hours.
He also has observed an individual shooting a weapon into the air in the parking lot at the proposed
location. He also testified that his mailbox had been knocked down by a vehicle.
- John Gambrell, forty-nine years of age, lives at 100 East Belvedere Road. His home is more than 700 feet
from the entrance of the proposed location but approximately 470 feet from the side of the proposed
location. Mr. Gambrell, a custom contractor/builder, has lived in the neighborhood since 1992. He can
see the entire location from his backdoor and den. He does not want the club at this location. At the
hearing, Mr. Gambrell testified that he has witnessed a shooting approximately 150 feet from his home.
He also has witnessed loitering, cruising, a rocket launch attack by teenagers on the 4th of July and other
problems. On two occasions, he has called the police to handle problems around the area of the proposed
location. Mr. Gambrell knows most of the members in the community and neighborhood. He enjoys his
friends and wants to enjoy his home. He believes the issuance of the permit and license would exacerbate
the current situation in the area.
- Teresa Miller is forty-six years of age and lives at 102 East Belvedere Road, next to Mr. Gambrell. She is
a single mother, trying to raise three children, ages 17, 16, and 10. One of her children is disabled. She is
afraid of people congregating in the area. She has witnessed gun shots and incidents in the parking lot of
the proposed location.
- George Hambrick is seventy-six years of age and lives at 111 Stratford Road. He has lived in his home
for forty-four years. He is opposed to beer, wine, and liquor being sold at the proposed location. He is
concerned about the increased traffic and people that alcohol sales will bring into the area.
- Earline Richardson has lived at 16 Whiller Drive for twenty-eight years. She has seen people
congregating in the parking lot at the proposed location and witnessed a shooting there. Her backyard
adjoins the property of the proposed location. Ms. Richardson would feel in danger if the proposed
location was licensed to sell alcoholic beverages. She has had people come from that direction through the
woods to her backyard in the past.
- Captain Bruce Cannon testified about numerous trespasses into the yards of residents in the area. He also
testified about the incident reports of assaults, larceny, liquor law violations, theft, and other crimes in the
area of the proposed location. He believes that if a permit and license are issued to the proposed location
for on-premises alcohol consumption, the current crime situation in the area will worsen.
- There is a history with the Sheriff's Office of complaints from individuals in South Forest Estates
subdivision. They are kept up late at night by the noise and are unable to sleep and enjoy their homes.
The residents of the subdivision have been working with the Sheriff's Office to see a "rebound" in their
community, to improve their quality of life, and to make the neighborhood safe for them and their
children.
- In the past and present, teenagers and adults congregate in the parking lot at the proposed location. They
drink alcoholic beverages, use drugs, shoot weapons, and become loud and boisterous. They also cruise
through the parking lot and the neighborhood behind the proposed location at all hours of the night.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
- Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and Chapter 23 of Title 1 of the Code of Laws of
South Carolina, 1976, as amended, the Administrative Law Judge Division has jurisdiction in this matter.
- The sale of beer, wine, or liquor is a lawful enterprise in South Carolina, as regulated by the State.
- S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for the issuance of a beer and
wine permit, provides:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The 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.
(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 a 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 or 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.
- S.C. Code Ann. § 61-6-1820 (Supp. 2000), which sets forth the requirements for the issuance of a sale
and consumption ("minibottle") license, provides in part:
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, Section 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 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 or 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) 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.
(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.
- S.C. Code Ann. § 61-6-120 (Supp. 2000) provides that a minibottle license will 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.
- S.C. Code Ann. § 61-6-1600 (Supp. 2000) provides:
Nonprofit organizations which are licensed by the department under this article may sell alcoholic liquors in
minibottles. Members or guests of members of these organizations may consume alcoholic liquors sold in
minibottles upon the premises between the hours of ten o'clock in the morning and two o'clock the following
morning.
- 23 S.C. Code Ann. Regs. 7-17 (1976 & Supp. 2000), entitled "Sale and Consumption at Nonprofit
Organizations," sets forth the requirements which must be met by an applicant to obtain a liquor license.
Petitioner is applying for the license as a nonprofit organization. Petitioner has complied with the
provisions of this regulation.
- According to S.C. Code Ann. § 61-6-910 (Supp. 2000), a license may not be issued 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.
- 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.
- 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.
- 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 judge 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).
- 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 based on opinions and conclusions or is
supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
- In this case, the testimony of the Protestants, Captain Cannon, and Mr. Simpson, indicates the many
problems the residents in the general area have with crime, loitering, trespass, harassment, noise. These
problems have emanated from this location over a number of years. The community is now working with
the Greenville County Sheriff's Office to curb these problems and make their neighborhood a safe place to
live. I found Capt. Cannon to be extremely credible. Further, I found Mr. Campbell and Mr. Clearwater,
together with Ms. Miller to be honest and concerned citizens, wishing to protect their homes and families.
These homeowners have lived in their homes for many years. They know the other members of their
community. They are aware of the problems and are trying to alleviate them. The proximity of the
proposed location with the introduction of many vehicles and patrons, who will be drinking alcoholic
beverages at the proposed location, will exacerbate the already existing problems in this neighborhood.
I find Mr. Lane has good intentions in seeking to renovate the building and grounds, hire security officers,
and build a fence. However, I find that due to the close proximity of the proposed location to so many
residences, the vast expenditures which must be made in an attempt to convert the proposed location into one
which will minimize adverse effects upon the surrounding residents, the request to keep this location open
past midnight, and the past history of problems at the proposed location, this type of establishment is not
suitable for this neighborhood.
The concerns in protecting the safety and well-being of the residents who live in this neighborhood 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. The permit and license requests, therefore,
must be denied.
- I conclude that Petitioner has not met its burden of proof in showing that it meets all of the statutory
requirements for holding a retail beer and wine permit and a sale and consumption license as a nonprofit
corporation at the proposed location. I further conclude that the proposed location is not a proper one for
granting the permit and license.
ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the application of LDL, Inc., d/b/a Darnell's for an on-premises beer and
wine permit and a sale and consumption license for the premises located at 6000 Augusta Road, Greenville
County, South Carolina is denied.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
September 10, 2001
Columbia, South Carolina |
