ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) on the
application of Tapped Out, Inc., d/b/a Tapped Out, for an on-premises beer and wine permit and minibottle license for a
business to be located at 4024 Highway 17 Business, Murrells Inlet, South Carolina. After notice to the parties and
protestants, a hearing was conducted on October 16, 2001. Based upon the evidence presented regarding the suitability of
the location, this tribunal finds the nature of the area in which the business is to be located suitable for a beer and wine
permit and minibottle license. Any motions or issues raised in the proceedings but not addressed in this Order are deemed
denied pursuant to ALJD Rule 29(C).
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into
account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On or about April 3, 2001, William B.D. Wilson, an officer of Tapped Out, Inc., submitted an application for an on-premises beer and wine permit and a bona fide restaurant minibottle license to the South Carolina Department of Revenue
(Department) for the premises located at 4024 Highway 17 Business, Murrells Inlet, South Carolina. Petitioner's
application is incorporated into the record by reference.
2. The other officers of Tapped Out, Inc. are Robert E. Somes, III, and Shawn M. Doyle. Mr. Doyle owned a 75% interest
in Tapped Out, Inc. On June 7, 2001, he was found guilty of violating S.C. Code Ann. § 61-6-4710 (Supp. 2000) for the
unlawful possession of liquor. As a consequence, the Department opposed Petitioner's application pursuant to S.C. Code
Ann. § 61-6-4260 (Supp. 2000), which provides that a person convicted of a violation of the Alcoholic Beverage Control
Act (which includes Section 61-6-4710, the statute under which Doyle was convicted) is not eligible for the issuance of
beer, wine, or liquor license for a period of one year. Because of this provision and S.C. Code Ann. § 61-2-100(D) (Supp.
2000), which requires that all principals of a licensed entity be of good moral character, Mr. Doyle stipulated that he would
divest himself of his ownership and managerial interest in Tapped Out, Inc. to the extent that he will no longer be
considered a principal of the licensed business as defined under S.C. Code Ann. § 61-2-100(H)(2) (Supp. 2000).
Specifically, Mr. Doyle agreed to reduce his ownership interest in Tapped Out, Inc. to under 25% of the value of the
corporation and to refuse any day-to-day operational management responsibilities in the business. As a result of these
stipulations, the Department withdrew its opposition to Petitioner's application.
3. Petitioner leases the proposed location from David McMillan and Al Hitchcock. In the 1990s, this location operated as a
piano bar named Scandals.
4. Applicant Wilson and the other principal in the business, Robert E. Somes, III, are persons of good moral character.
5. Applicant is a legal resident of the United States.
6. Applicant has resided in and maintained his principal place of abode in South Carolina for more than thirty days before
applying for a beer and wine permit and minibottle license.
7. Petitioner proposes to offer meals, consisting primarily of appetizers, sandwiches, and pizzas, beer, wine, liquor, and
entertainment consisting of recorded and live music.
8. Wilson and Somes have never been cited for any violations of the alcoholic beverage control laws and have never had
any permit to sell beer or wine or alcoholic liquors suspended or revoked.
9. Applicant is over twenty-one years of age.
10. Notice of application for the beer and wine permit and minibottle license was published in the Georgetown Times on
March 28, April 4, and April 11, 2001.
11. Intervenor Chandler and a number of residents of the community oppose the issuance of the permit and license in
question on the grounds that the proposed location is unsuitable because of its proximity to residences and the nature of the
business to be conducted. They argue that the proposed business will be a bar and not a restaurant, and that, as such, the
operation of the business at that location would adversely affect the residents' quality of life.
12. The proposed location received a Grade A rating from the South Carolina Department of Health and Environmental
Control and possesses the capacity to seat forty persons simultaneously at tables for the service of meals.
13. The proposed location is located on Highway 17 Business in the fishing village of Murrells Inlet. The area is
unincorporated and consists of a mixture of businesses, primarily restaurants, and residences. There are approximately 36
restaurants on the 2.7-mile stretch of Highway 17 Business that passes through Murrells Inlet. About 34 of these
restaurants have liquor licenses.
14. There are no churches, schools, or playgrounds within close proximity to the proposed location. The nearest residence
is 300 to 400 feet to the rear of the proposed location.
15. The Protestants and the Intervenor proposed, and the Petitioner, through its principals, agreed to, a preliminary list of
restrictions on the operation of the business. However, the Protestants and the Petitioner could not agree on the appropriate
hours of operation for Tapped Out. The Protestants suggested that the business should close at 12:00 a.m., whereas
Petitioner desired to remain open until 2:00 a.m. on most nights and until 4:00 a.m. on special occasions.
16. On the record in open court, Petitioner stipulated to the following restrictions being placed on its requested permit and
license in order to assuage the concerns of the Protestants and Intervenor:
(a) Petitioner will not have a "burn out" pit for motorcycles;
(b) Petitioner will not have an outdoor dunking booth;
(c) Petitioner will not sponsor activities that encourage or promote nudity or profanity;
(d) Petitioner will not permit more than two outside vendors on the premises;
(e) Petitioner will close its business each day by 2:00 a.m.;
(f) Petitioner will not have live or recorded music outside after 8:00 p.m. each day;
(g) Petitioner will not allow patrons to consume alcohol on the deck after 12:00 a.m. each day;
(h) Petitioner will obey all county ordinances applicable to their business.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction is vested with the Administrative Law Judge Division 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 et seq. (1986 & Supp. 2000).
2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or
official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246,
248, 317 S.E.2d 476, 477 (Ct. App. 1984).
3. S.C. Code Ann. §§ 61-4-520 (Supp. 2000) & 61-6-1820 (Supp. 2000), respectively, establish the criteria for the issuance
of a beer and wine permit and a minibottle license. Although the suitability of the proposed location is not listed in Section
61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control
Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Further, S.C. Code Ann. § 61-6-20(2) (Supp. 2000) and 23 S.C. Code
Ann. Regs. 7-19 (1976) prescribe supplemental parameters and details for implementing the statutory requirements for a
business establishment before issuance of a beer and wine permit and a minibottle license.
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining
the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5. 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); Schudel v. S.C. Alcoholic
Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows
adverse circumstances of location. Palmer v. S.C. Alcoholic Beverage Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.
1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
7. "[A] liquor license or permit may properly be refused on the ground that the location of the establishment would
adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment
would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be
conductive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 (1981).
8. Further, the "proximity of a location to a church, school or residence is a proper ground, by itself, on which the [trier of
fact] may find the location to be unsuitable." Byers v. S.C. Alcoholic Beverage Comm'n, 305 S.C. 243, 246, 407 S.E.2d
653, 655 (1991).
9. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v.
South Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best
position to judge the witness's demeanor and veracity and to evaluate his testimony. See McAlister v. Patterson, 278 S.C.
481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328
S.E.2d 659 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
10. This tribunal finds that Petitioner's stipulation to the imposition of restrictions on its requested permit and license will
substantially alleviate the concerns raised by the Protestants and the Intervenor. Further, there was sufficient evidence
presented at the hearing to show that the proposed location is suitable for the Petitioner's business, that the business would
be consistent with the commercial environment of Murrells Inlet, and that the issuance of a beer and wine permit and
minibottle license would not have an adverse affect on the community, given the stipulated restrictions on the permit and
license.
11. Petitioner satisfies all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of a
beer and wine permit and a minibottle license. The Department shall issue the permit and license with the aforementioned
stipulated restrictions. See 23 S.C. Code Ann. Regs. 7-27 (1976).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Department shall issue to Petitioner an on-premises beer and wine permit and
minibottle license for the proposed location, subject to the aforementioned stipulated restrictions.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 30, 2001
Columbia, South Carolina |
