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) and S.C. Code
Ann. § 1-23-310 etseq.
(Supp. 2000) upon filing of an application by Petitioner, Bobbie J. Brown,
d/b/a Sunny's Drop In ("Petitioner") for renewal of an on-premise beer
and wine permit for a location at 4571 Jenerette Street, Loris, South Carolina.
Upon receipt of a written protest to the application, the South Carolina
Department of Revenue ("Department") transmitted the case to the Administrative
Law Judge Division ("ALJD") for a hearing. After timely notice to the parties
and Protestants, a contested case hearing was held on September 12, 2001,
at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants
were Chief Herbert Blake, Sgt. Maurice Jones, and Mr. Herman Watson. Bobbie
J. Brown is the owner of Sunny's Drop In, which is managed by her son,
Samuel Brown. Bobbie, Samuel, and Reginald Brown all testified in support
of the application. Upon review of the relevant and probative evidence
and applicable law, the application for a renewal of an on-premise beer
and wine permit is denied.
FINDINGS OF FACT
Having carefully considered
all testimony and arguments presented at the hearing of this matter, and
taking into account the credibility and accuracy of the evidence, I make
the following findings of fact by a preponderance of the evidence:
-
Notice of the time, date and
place of the hearing was given to the Petitioner,
Protestant, and Department.
2. The Petitioner seeks to
renew an on-premises beer and wine permit for Sunny's Drop In at 4571 Jenerette
Street, Loris, Horry County, South Carolina. The proposed location has
been permitted for the on-premises sale of beer and wine since 1983.
3. The Department moved to
be excused from appearing at the hearing on the
ground that it would have
granted the permit and license but for the unanswered question of the suitability
of the proposed location. Said motion was granted.
4. Prior to the death of
Petitioner's husband in 1998, Sunny's Drop In was a popular hangout of
more mature patrons, including members of local law enforcement agencies.
Since Mr. Brown's death, Sunny's Drop In caters to a much younger clientele
and operates much more like a dance hall than a neighborhood club. In fact,
the Drop In's DJ, Petitioner's son, Reginald Brown, plays hip-hop and dance
music. Although it is open Monday through Saturday, the Drop In's busiest
night is Thursday night, Ladies Night, where the cover charge is waived
for all women. The club is open from 7 p.m. to 2:00 a.m. Monday through
Friday, and from 7:00 p.m. to 12:00 a.m on Saturday.
5. The proposed location
is situated on a major thoroughfare running through the town of Loris.
Several residences and churches are nearby. In fact, the properties immediately
adjacent to the Drop In are residences.
6. Maurice Jones, a sergeant
with the Horry County Sheriff's Department, testified in opposition to
the renewal of the beer and wine permit. As supervisor of the Horry County
Narcotics and Vice Unit, Sgt. Jones testified that his office receives
complaints about the noise emanating from the club, particularly on Thursday
nights. In addition, the club's neighbors have complained that the club's
patrons block their driveways with their cars and leave litter, including
beer cans, in their yards. Sgt. Jones himself has observed loud music coming
from the club, and testified that, although Samuel and Reggie Brown turn
down the music when law enforcement asks, the volume of the music goes
up ten minutes later.
7. More importantly, Sgt.
Jones testified that the club is a hangout of drug dealers and other criminal
elements. Sgt. Jones was present on a number of occasions when undercover
sheriff's deputies purchased narcotics in the parking lot or in the area
immediately adjacent to the Drop In. In addition to the drug-related arrests
made at the Drop In, Sgt. Jones testified that there have been a number
of incidents involving weapons, resulting in the arrests of several patrons
of the Drop In. Upon cross examination, Sgt. Jones admitted that he had
no knowledge that drugs were ever purchased from one of the Browns. Sgt.
Jones also admitted that he did not inform any of the Browns that his team
had made drug-related arrests. Sgt. Jones testified that arrests resulting
from drug buys were kept quiet to protect the investigation. Sgt. Jones
also admitted that the Browns turned down the music when asked; however,
he testified that the music quickly returned to excessive volume.
8. Herbert Blake, Chief of
Police for the City of Loris, also testified in opposition to the renewal.
Chief Blake joined the Loris Police Department in January 2001 and testified
that he spoke with Samuel and Reginald Brown to seek their cooperation
in controlling the illegal activity at the Drop In. Chief Blake testified
that he and his department continually receive complaints about the noise,
the litter, and patrons of the Drop In parking in the yards of neighboring
residences and blocking their driveways. According to Chief Blake, the
Loris City Police respond to the Drop In every Wednesday and Thursday night
for loud music and disorderly crowds. Chief Blake has asked the Browns
to raise the age limit and to hire a security company in an effort to control
the problem, to no avail. Finally, Chief Blake testified that on at least
one occasion, Samuel and Reginald Brown became disorderly, forcing the
Police Department to shut the bar down. On cross-examination, Chief Blake
admitted that the Browns had never been arrested for violating the noise
ordinance.
9. Herman Watson testified
in opposition to the renewal. Mr. Watson is a resident of Loris, living
approximately 200 feet from the Drop In. He testified that he gets no rest
because of the music, which is so loud it rattles his windows. On Thursday
nights, Mr. Watson can look out his window and see the cars lined up and
down the street. More than once, one of those cars has blocked his driveway.
Mr. Herman objects to the loud music, the disrespect of the club's patrons,
and the beer cans and paper on his lawn.
10. Bobbie J. Brown, the
owner of the Drop In, testified in support of the renewal. She testified
that she took over running the club after her husband's death in 1998.
Brown usually works at the club in the mornings, attending her part-time
job in the afternoons. She is not there at night. Both of her sons help
her run the place. Brown is aware of no drug problem involving the Drop
In. She is unaware of any arrests made at the club. When she applied for
the renewal, Brown asked some residents of the neighborhood if they wanted
to protest. She did not receive any response. Brown testified that Herman
Watson never complained to her about the club. However, Brown is aware
of one incident in which a neighbor's driveway was blocked by a patron's
car. Brown testified that Ladies Night is once a week and brings in a lot
of revenue. Finally, Brown testified that she needs this business to help
support her.
11. Samuel Brown, Petitioner's
son, testified in support of the renewal. Samuel testified that he manages
the club, working in the afternoons and evenings until closing time. Thursday
night is Ladies Night, when ladies get in free. Ladies Night draws a big
crowd. Although the majority of the patrons are ladies, the men come as
well. The club plays disco. Samuel testified that there are no drugs in
his business or inside the Drop In. Samuel testified that he cannot control
what happens outside. When he receives complaints about patrons parking
in yards or blocking driveways, Samuel has the music turned off until the
patron moves the vehicle. Sgt. Jones has mentioned drugs, but mostly he
complains about the music. Samuel testified that a person standing in the
middle of the road could not hear the music playing inside the club. The
Chief of Police has also talked with Samuel about the noise. On every night
but Thursday, the Drop In has an older crowd. Samuel thinks he can control
the problem that Thursday night presents.
11. Reginald Brown, Petitoner's
son, testified in support of the renewal. Reginald testified that he is
the DJ at the Drop In. Because of a problem with the music being too loud
on Thursday nights, Reginald took the bass out of the music. He turns the
volume down when told to do so. Reginald testified that he would do whatever
he needed to do to keep the Drop In open.
The evidence offered raises
significant concerns that this business creates an overall adverse impact
on the community. Not only does the proposed location have a history of
consistently disturbing its neighbors with its loud music, the patrons
of the proposed location routinely abuse and endanger the surrounding residents
with their trespassing, littering, weapons possession, and drug-dealing.
By his own testimony, the Drop In's manager, Petitioner's son, can only
control what happens inside
the club.
CONCLUSIONS
OF LAW
Based upon the Findings of
Fact, I conclude as a matter of law, the following:
1. Pursuant to S.C. Code
Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-600(B) (Supp.
2000) and S.C. Code Ann. § 1-23-310 etseq.
(Supp. 2000) the South Carolina Administrative Law Judge Division has jurisdiction
in this matter.
2. S.C. Code Ann. §
61-4-520 (Supp. 2000), which sets forth the requirements for the issuance
of a beer and wine permit, provides, in relevant 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.
***
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.
***
3. The Petitioner, Bobbie
J. Brown, has met the qualifications set forth in S.C. Code Ann. §
61-4-520 (Supp. 2000), concerning residency, age, moral requirements, criminal
convictions, reputation for peace and good order in its community, as well
as the publication and notice requirements.
4. 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.
5. 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 upon 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).
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 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. Permits issued by the
State for the sale of beer and wine are not rights or property, but are
rather privileges granted in the exercise of the police power of the State
to be used and enjoyed only so long as the restrictions and conditions
governing them are complied with. As the tribunal authorized to grant the
issuance of a permit is also authorized, for cause, to revoke it, that
tribunal is likewise authorized to place restrictions or conditions on
the permit. SeeFeldman
v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
8. A violation of any regulation
or section of the Alcoholic Beverage Control Act is punishable by revocation
or suspension of the permit pursuant to S.C. Code Ann. § 61-4-580
(Supp. 2000).
9. S.C. Code Ann. §
61-2-160 (Supp. 2000) prohibits the issuance, renewal or transfer of a
permit under Title 61 if the applicant owes state or federal government
delinquent taxes, penalties or interest.
10. I conclude that the Petitioner
has failed to meet her burden of proof in showing that she meets all of
the statutory requirements for holding an on-premises beer and wine permit
at the location. I conclude that the proposed location is not a suitable
one for renewing the permit. The evidence presented at hearing shows that
the proposed location presents a "law enforcement problem," as testified
to by Sgt. Jones and Chief Blake. While I am not unsympathetic to the economic
consequences of the non-renewal, I cannot continue to subject the residents
of Loris to the blight that Sunny's Drop In has, sadly, become.ORDER
Based upon the above Findings
of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's
application for the renewal of an on-premises beer and wine permit for
its location at 4571 Jenerette Street, Loris, South Carolina is DENIED.
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
October 1, 2001
Columbia, South Carolina |
