SC Administrative Law Court Decisions

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 Joyce B. Russell for Sip It's Night Life, Inc. for an on-premises beer and wine permit and minibottle license for a nonprofit private club at 66 Jones Street, Greenville, South Carolina. The Department of Revenue (Department) would have granted the permit and license but for a protest regarding the suitability of the club's location. Accordingly, the Department was excused from the hearing of this matter. After notice to the parties, a hearing was conducted on November 20, 2001, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location, Petitioner's application for an on-premises beer and wine permit and minibottle license is denied.

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. Applicant Joyce Russell submitted an application for an on-premises beer and wine permit and a nonprofit private club minibottle license with the Department on June 12, 2001, for the premises located at 66 Jones Street, Greenville, South Carolina. This application is incorporated by reference into the record.

2. The proposed location is situated on the corner of Easley Bridge Road, a four-lane commercial thoroughfare, and Jones Street, a two-lane street leading into a residential neighborhood. Several residences are within close proximity of the proposed location. Measured along public thoroughfares, the entrance of the nearest residence is 164 feet from the entrance of the club. Measured directly between buildings, nearby residences are as close as 28 feet and 130 feet from the club, and are separated from the club's property only by a low chain-link fence and a medium-height wooden fence, respectively.

3. The proposed location has previously been permitted for on-premises beer and wine sales and licensed for the consumption of liquor from minibottles. Under previous management, the Greenville County Sheriff was called to the premises twenty-three times between January 1, 2000 and May 8, 2001. However, law enforcement has not been called to the location since Applicant Russell leased the property on June 6, 2001. Additionally, Petitioner recently operated without incident under a 120-day temporary beer and wine permit and minibottle license while its application was being processed, although it is not clear how many days the club was actually in operation during that time period.

4. Applicant Russell is a person of good moral character.

5. Applicant Russell is a legal resident of the United States.

6. Applicant Russell has resided in and maintained her principal place of abode in South Carolina for more than thirty days before applying for the permit and minibottle license.

7. Applicant Russell has never been cited for any violations of the alcoholic beverage control laws and she has never had a permit to sell beer and wine or alcoholic liquors suspended or revoked.

8. Applicant Russell is over twenty-one years of age.

9. Notice of the application for the beer and wine permit and minibottle license was published in The Greenville News on June 11, 18, and 25, 2001. Notice was also posted at the proposed location for the required time period.

10. Applicant Russell intends to operate a nonprofit private club at the location. Applicant represents and Petitioner's bylaws indicate that the object and purpose of the nonprofit private club is to operate solely and exclusively for the social and fraternal benefit of its members. Further, the private club intends to support the Greenville Shriners' Hospital. The proposed hours of operation are 10:00 a.m. to 2:00 a.m., daily.

11. The bylaws of the organization provide a definite, fixed method of electing persons to membership in the organization, and membership is not open to the general public. Petitioner's bylaws also provide for the election of a Board of Directors and officers for the club. The bylaws further provide that the club shall be maintained through the payment of dues by its members and that, upon dissolution, liquidation, or termination of the club, its assets will be distributed to an appropriate charitable organization.

12. Petitioner filed Articles of Incorporation as a nonprofit corporation with the Secretary of State of South Carolina on or about January 10, 2001, and is currently registered and in good standing with the Secretary of State.

13. Intervenor Kimsey Gilstrap filed a protest to Petitioner's application and later intervened in this matter on the grounds that the proposed location is unsuitable for Petitioner's club because of its proximity to nearby residences, its proximity to a school crossing, and the potential for traffic problems on nearby residential streets, including the problem of overflow parking from the club. At the hearing the parties stipulated to the fact that the intersection of Jones Street and Easley Bridge Road is no longer used as a school crossing.

CONCLUSIONS OF LAW

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

1. Jurisdiction over this case 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). 23 S.C. Code Ann. Regs. 7-17 (1976 & Supp. 2000) sets forth additional requirements for a bona fide nonprofit organization to hold a liquor 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 location is not necessarily a function solely of geography. Rather, 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 Control 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 be properly 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 conducive 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 Control 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 the evidence presented. See S.C. Cable Television Ass'n v. S. Bell Tel. & 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. 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 the issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).

11. In considering the nature of the club's activities and its proximity to a residential community, I find the proposed location unsuitable for Petitioner's proposed operations. There are inherent consequences from the operation of a social club which are not conducive to the harmonious coexistence of such a club with a surrounding residential community. The residents of the community surrounding the proposed location are entitled to be free of the kinds of criminal activity, noise disturbances, parking and traffic problems, and other nuisances that are associated with the operation of social clubs generally and that have been associated with previous establishments at this particular location. ⁽¹⁾

As noted above, the proximity of a residence to a location is a sufficient ground in and of itself to deny a beer and wine permit and a minibottle license. See Byers, 305 S.C. 243, 407 S.E.2d 653. Here, there are several residences within 200 feet of the location, including residences as near as 28 feet and 130 feet. It is this combination of the proximity of residences and the nature of Petitioner's establishment that renders the proposed location unsuitable for the issuance of the requested permit and license.

12. This tribunal is respectful of the fact that Applicant Russell has expended time and resources in attempting to secure the permit and license in question. And, this tribunal does not question Applicant's sincerity in her attempt to eliminate criminal activity and other disturbances at the proposed location. Nevertheless, there was a sufficient evidentiary showing in the present case that the proposed location is unsuitable for Petitioner's operations and that the issuance of the beer and wine permit and minibottle license would have an adverse impact on the community. See Kearney, 287 S.C. at 327, 338 S.E.2d at 337 (upholding denial of a beer and wine permit and minibottle license to a country-western music lounge with hours of operation similar to Petitioner's because of the impact of the lounge "upon [a local] School, upon the residential character of the surrounding area and upon the traffic congestion potential").

13. Accordingly, I find the proposed location to be unsuitable for the issuance of an on-premises beer and wine permit and a minibottle license because of the close proximity of the club to a residential community and because of the history of previous disturbances at the proposed location.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the application of Joyce B. Russell for an on-premises beer and wine permit and a nonprofit private club minibottle license for 66 Jones Street, Greenville, South Carolina is DENIED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

December 7, 2001

Columbia, South Carolina

1. Further, the mere fact that the location was licensed in the past does not mean that the location is a proper one for Petitioner's activities. In fact, the problems associated with the previous establishment at the location suggest that the location is unsuitable for the operation of a social drinking club.