South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Airport Lounge, Inc., d/b/a Airport Lounge vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Airport Lounge, Inc., d/b/a Airport Lounge

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0484-CC

APPEARANCES:
For the Petitioner: Martha L. Stephens, Pro Se

For the Protestant: Reverend Allen Usher, Pro Se

For the Department of Revenue: Nicholas P. Sipe, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2000) and S. C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2000) for a contested case hearing. The Petitioner seeks a nonprofit private club minibottle license and an on-premise beer and wine permit. A hearing was held on January 22, 2002, at the offices of the Division in Columbia, South Carolina.



FINDINGS OF FACT

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 Petitioner, the Protestant(s), and the Department of Revenue (Department), I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestant(s), and the Department.

2. The Petitioner seeks a nonprofit private club minibottle sale and consumption license and an on-premise beer and wine permit for the Airport Lounge (Lounge), located at Route 3, Box 270, Cheraw, Chesterfield County, South Carolina.

3. The qualifications set forth in S. C. Code Ann. § 61-4-520 (Supp. 2000) concerning the residency and age of Martha Stephens were properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. There are no schools, churches, or playgrounds located within 500 feet of this location.

5. The Petitioner's principals and applicants do not have criminal records and are of sufficient moral character to receive a nonprofit private club minibottle license and a beer and wine permit.

6. The records submitted to the Department by Martha Stephens reflect that she began renting the proposed location in July 2001. On the other hand, she testified that she purchased the proposed location in July 2001. Afterwards, she applied for a nonprofit private club minibottle sale and consumption license and on-premise beer and wine permit for the Lounge. The Lounge is incorporated as a nonprofit corporation under the laws of South Carolina. However, the organization is managed as an enterprise of the applicant. In fact, Ms. Stephens testified that the purpose of this organization is a "business opportunity" for her. Furthermore, she selected the members, officers and board of directors of the organization. Those members have done nothing concerning the management of the organization. Moreover, after the bylaws were drafted by her accountant, the bylaws were never approved by the board of directors.

7. The Airport Lounge is located 700 feet from a church named Maranatha Family Center. The Church also operates a school for approximately 210 children from preschool to the 12th grade. The proposed the location has been previously permitted for the sale of beer and wine. However, the location was originally operated as a gas station and the subsequent owner changed the operation of the store into a lounge. Since its operation as a lounge, numerous criminal offenses have occurred at the location. Problems often occurred in the parking area, including fights, loitering and the consumption of alcohol. Additionally, loud music frequently emanated from the location. Consequently, the previous lounge at the location had become a nuisance to the local community.

If this business is operated as the previous permittee managed the location, it would create an overall adverse impact on the community. Nevertheless, in order to deny this permit, direct evidence of an adverse impact on the community is necessary, particularly in light of the fact that the site of the proposed location has been previously permitted without any actions having been brought against the permittee. The evidence did not establish that the granting of a restricted permit as the Petitioner proposes to operate the location will augment the criminal activity in this area or have an overall adverse impact on the community.

Therefore, since it appears that with the restrictions set forth below, this new business would not change the integrity of the neighborhood or create an overall adverse impact on the community, the proposed location is suitable for an on-premise beer and wine permit. However, those restrictions are necessary to protect the current integrity of the community. Accordingly, the proposed location will not be suitable if the Petitioner does not comply with the restrictions below and the Department could properly bring an action to revoke the Petitioner's permit.



CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance of a beer and wine permit.

4. In addition to the requirements set forth above, a license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2000) are met. That section requires that the principals and applicants must not only be of good moral character, but they must also have a reputation for peace and good order. Additionally, Section 61-6-1820 provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, or playgrounds as forth in S.C. Code Ann. § 61-6-120 (Supp. 2000). Section 61-6-120 also requires that a location outside of a municipality licensed to sell liquor must be a minimum of 500 feet from any church, school, or playground. The distance is determined by following "the shortest route of an ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school or playground. . . ." S.C. Code Ann. § 61-6-120 (Supp. 2000).

5. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2000) are met. That section requires that a mini-bottle license be granted only to a bonafide business engaged in either the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not only must the principals and applicant be of good moral character but the business must also have a reputation for peace and good order.

6. S.C. Code Ann.§ 61-6-20(6) (Supp. 2000) establishes that a nonprofit organization is not open to the general public and only the members and guests of the nonprofit organization may consume alcoholic beverages upon the premises.

7. 23 S.C. Code Ann. Regs. 7-17 (D)(Supp. 2000) requires that "[t]he affairs and management of such nonprofit organization shall be conducted by a board of directors, executive committee or similar governing body chosen by the members at a regular meeting held at some periodic interval but at least on an annual basis." Here, though all the executive positions have been filled, there have been no votes by the membership of the organization. I find that rather than having its affairs managed by a "governing body chosen by the members at a regular meeting," this organization is simply managed as an enterprise of the applicant.

8. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 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 operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

In considering the suitability of a location, it is relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). The fact that the establishment was previously licensed also has bearing on the consideration of suitability. Consequently, there must be a showing that the location is somehow less suitable now than in the past. Id.

9. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, privileges granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

10. The Petitioner meets the statutory requirements for holding an on-premise beer and wine permit at the proposed location with the following restrictions. However, the Petitioner fails to meet the statutory requirements to be issued its nonprofit minibottle sale and consumption license.





ORDER

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

ORDERED that the on-premise beer and wine permit application of Airport Lounge be granted upon the president of the Petitioner corporation signing a written Agreement with the South Carolina Department of Revenue agreeing to the restrictions that are set forth below:

1. The Petitioner and its employees shall not allow excessive noise to emanate from the Airport Lounge. Any noise that is noticeably audible within any local residence or church with closed doors and windows shall be considered excessive. Furthermore, for the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision.



2. The Petitioner or its employees shall prohibit loitering and the consumption of beer and wine in the parking lot area of the proposed location and shall ensure that no public disturbance is created.



3. The Petitioner shall have at least one security guard, dedicated only to security, to patrol the inside and the area immediately surrounding the proposed location. The security guard(s) shall prohibit public disturbances of any kind at the location. The guard(s) shall also monitor the outside of the location to prohibit the consumption of any alcohol or the use of any drugs.

IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an on-premise beer and wine permit upon the payment of the required fees and costs by the Petitioner.

IT IS FURTHER ORDERED that nonprofit minibottle sale and consumption license for Airport Lounge is denied.

AND IT IS SO ORDERED.





_________________________________

Ralph King Anderson, III

Administrative Law Judge



March 22, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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