ORDERS:
FINAL ORDER AND DECISION
I. STATEMENT OF THE CASE
This matter is before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2001) on the application of Petitioner AK&W, Inc. for an on-premises beer and wine permit and restaurant
minibottle license for an establishment located at 1404 ½ Gervais Street, Columbia, South Carolina. The Department of
Revenue ("Department") would have granted the permit and license but for the protest of D.R. Owens, the cathedral
administrator of Trinity Episcopal Cathedral ("Trinity"), regarding the suitability of the proposed location. Accordingly,
the Department was excused from the hearing of this matter. Trinity moved for leave to intervene in this case on February
1, 2002, and by an Order of this tribunal dated February 19, 2002, Trinity was granted leave to intervene in this matter.
After notice to the parties, a hearing was conducted on February 26, 2002, at the Administrative Law Judge Division in
Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location and the
applicable law, this tribunal finds that the location is a suitable one for the issuance of an on-premises beer and wine permit
and a restaurant minibottle license.
II. 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 August 28, 2001, Ammar Abbas submitted an application on behalf of AK&W, Inc. for an on-premises beer and
wine permit and restaurant minibottle license to the Department for the premises located at 1404 ½ Gervais Street,
Columbia, South Carolina. The application listed Mr. Abbas as the sole owner, officer, and employee with day-to-day
operational responsibilities of AK&W, Inc. This application is incorporated into the record by reference.
2. Petitioner leases the proposed location from Odell Polson. The location has previously been operated as a night club
under different management. Petitioner has operated the location two nights a week as a "teen club" while its permit and
license application has been pending before the Department and this tribunal. During this time, the activities at Petitioner's
location have not resulted in any disturbances or problems for Intervenor Trinity Episcopal Cathedral. If granted the permit
and license, Petitioner intends to operate the location as a night club for professional adults.
3. William E. Ellis, Jr. currently manages the club and is responsible for its day-to-day operations. Mr. Ellis will have the
same role in the proposed night club.
4. Mr. Abbas has no record of any criminal convictions and, on this basis, appears to be a person of good moral character.
However, a criminal background check was not conducted on Mr. Ellis, even though he will have day-to-day operational
management responsibilities for the night club.
5. Mr. Abbas is not delinquent in his state or federal taxes. However, the Department did not determine whether Mr. Ellis,
a principal of the Petitioner, had any delinquent taxes.
6. Both Mr. Abbas and Mr. Ellis are over twenty-one years of age.
7. AK&W, Inc. is a corporation duly organized under the laws of the State of South Carolina.
8. Petitioner has never been cited for a violation of the alcoholic beverage control laws and has never had a beer and wine
permit or minibottle license suspended or revoked.
9. Petitioner intends to conduct a business engaged primarily and substantially in the preparation and serving of meals, and
the proposed location has 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.
10. Notice of Petitioner's application for a beer and wine permit and a minibottle license was published for three
consecutive weeks in The (Columbia, SC) State newspaper, and proper notice of the application was posted at the proposed
location for fifteen days.
11. The proposed location is situated along a four-lane street in a business district in downtown Columbia. The other
buildings sharing the same block of Gervais Street as the proposed location are commercial in nature. These nearby
businesses include Alpha Graphics, a 76 gas station, a Goodyear automotive repair shop, The Palace restaurant, the studios
of WIS-TV, and those businesses located in the large office building at 1411 Gervais Street. There are no schools or
residences within the immediate vicinity of Petitioner's proposed club.
12. Intervenor Trinity opposes the issuance of the permit and license based on the proximity of the proposed location to a
portion of its property that is currently used as a parking lot and that will be the site of a new building housing offices and
recreational space for the cathedral. Much of the concern of Trinity's members stems from the problems, particularly with
trash and debris found in its parking lot, that the cathedral had with previous night club establishments at the proposed
location. Trinity contends that patrons arriving at or leaving Petitioner's club will disturb Trinity's use of its parking lot,
which is used not only for parking during services but also for other church events. Also, Trinity contends that the
operation of the proposed location will disrupt activities at the soon-to-be-constructed gymnasium and dining hall.
13. At the hearing of this matter, evidence was presented that, measured from the front door of the proposed location to the
front door of the cathedral, Petitioner's establishment is approximately 900 feet away from the cathedral. Additional
evidence showed that Trinity has an office building situated approximately 360 feet from the proposed location and a
playground located approximately 340 feet from the proposed location. Further evidence demonstrated that the corner of
Trinity's parking lot on the corner of Marion and Gervais Streets is approximately 190 feet from the proposed location.
However, neither the measurements provided to the Department by the South Carolina Law Enforcement Division (SLED)
nor the measurements presented by Intervenor at the hearing contained a measurement of the distance from the nearest
entrance of Petitioner's business along the shortest route of ordinary pedestrian or vehicular traffic to the nearest point of
entrance to the grounds in use as part of the cathedral, i.e., to the nearest entrance to Trinity's parking lot on the corner of
Marion and Gervais Streets. Accordingly, by Orders dated March 13, 2002 and March 29, 2002, this tribunal ordered the
record in this matter reopened to incorporate evidence regarding the distance between the proposed location and the
grounds in use by Trinity, as measured in accordance with applicable statutory and regulatory provisions. In response to
these Orders, the Department submitted a signed statement and accompanying map prepared by SLED Agent Sonya
Ashford. Agent Ashford found the distance, as measured by following the shortest route of ordinary pedestrian or vehicular
travel on the public thoroughfare, between the nearest entrance of Petitioner's place of business and the nearest point of
entrance to the grounds in use as part of Trinity's cathedral, namely the edge of the Gervais Street entrance to its parking lot
on the corner of Gervais and Marion Streets, to be 304 feet. Disputing the SLED measurements, Intervenor Trinity
submitted an alternate set of measurements through an affidavit signed by James F. Sims, a registered engineer in South
Carolina for 43 years and a member of Trinity Episcopal Cathedral. In his affidavit, Mr. Sims states that he measured the
distance between the nearest entrance to Petitioner's business and the edge of the Gervais Street entrance to Trinity's
parking lot to be 296.37 feet.
I hereby find that Trinity's parking lot on the corner of Gervais and Marion Streets does constitute grounds in use by Trinity
Episcopal Cathedral, that the point of entrance to those grounds nearest the proposed location is the Gervais Street entrance
to the parking lot, and that this entrance is more than 300 feet away from the nearest entrance of Petitioner's establishment,
as measured by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare.
14. Trinity has commissioned architectural plans for the construction of a new building on that portion of its property now
occupied by the parking lot. The new building will contain cathedral offices, a kitchen, and a gymnasium/social hall and
will cost about $6 million to construct. Trinity has raised about half of the funds necessary for the project and expects to
begin construction within the year. If, and when, constructed, the new building will be situated approximately 225 feet
from the proposed location.
III. CONCLUSIONS OF LAW
Based upon the above 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. 2001)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001).
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. 2001) & 61-6-1820 (Supp. 2001), 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. 2001) and 23 S.C. Code
Ann. Regs. 7-19 (1976) prescribe additional parameters and details for implementing the statutory requirements for a
restaurant before the issuance of a minibottle license to the establishment.
A. Suitability of Location
4. Although "suitable location" is not statutorily defined, broad discretion has been vested in the finder of fact to determine
the fitness or suitability of a particular location for the requested permit or license. 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 in 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. However, 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 an application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. Beyond these general considerations of suitability of location, under S.C. Code Ann. §§ 61-6-1820(3) (Supp. 2001) and
61-6-120(A) (Supp. 2001), the Department may not issue a minibottle license to a business establishment, "if the place of
business is within three hundred feet of any church, school, or playground situated within a municipality." § 61-6-120(A).
Section 61-6-120 goes on to provide that the minimum distance between a licensed establishment and a church should be
measured "by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the
nearest point of the grounds in use as part of such church." Id. A Department regulation elaborates upon how this
measurement should be made:
With respect to a church or school, the distance shall be measured from the nearest entrance of the place of business by
following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of
entrance to the grounds of the church or school, or any building in which religious services or school classes are held,
whichever is the closer . . . . [T]he grounds in use as part of the church or school is restricted to the grounds immediately
surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to
grounds surrounding the church which may be used for beautification, cemeteries, or any purpose other than such part of
the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings.
23 S.C. Code Ann. Regs. 7-11 (1976).
9. Here, I find that Trinity's parking lot on the corner of Marion and Gervais Streets, as land which immediately surrounds
the Cathedral's buildings and which is necessary to leave the public thoroughfare and to enter or leave those buildings, does
constitute grounds in use as part of Trinity Episcopal Cathedral. I further find that, measured along the shortest route of
ordinary pedestrian and vehicular travel along the public thoroughfare between the nearest point of entrance to Petitioner's
place of business and the nearest point of entrance to Trinity's grounds in use as part of the Cathedral, i.e., the Gervais
Street entrance to the parking lot, the distance between the proposed location and Trinity Episcopal Cathedral is greater
than 300 feet. (1) Petitioner's club is, therefore, more than 300 feet from any church.
10. However, Trinity contends that, even if Petitioner's club is currently more than 300 feet from the cathedral, Petitioner's
application for a minibottle license should be denied because, upon its completion, Trinity's new gymnasium and office
building will be 225 feet away from Petitioner's business. This argument must fail. For, without questioning the
genuineness of Trinity's intent to construct the proposed gymnasium where its parking lot now sits, the fact remains that
the proposed new building has not been constructed, and therefore, cannot serve as a basis upon which to deny Petitioner its
license. The statutory provisions regarding the minimum distance between a licensed establishment and a church, school,
or playground are cast in the present tense and clearly contemplate that the Department will only consider buildings in
existence at the time of licensure in making its determination of whether the proposed location is within the statutory
prohibition. See S.C. Code Ann. § 61-6-120(A) ("The department shall not grant or issue any license . . . if the place of
business is within three hundred feet of any church.") (emphasis added); S.C. Code Ann. § 61-6-120(A)(1) (defining a
"church" as "an establishment, other than a private dwelling, where religious services are usually conducted") (emphasis
added). Under such a statute, church or school buildings not in existence at the time of licensure cannot be considered in
determining whether a church or school is within the prohibited distance from a proposed location. See Starks v. Presque
Isle Circuit Judge, 139 N.W. 29, 29 (Mich. 1912) (holding that the establishment of religious services near a saloon two
days after it received its license did not affect the validity of the license as the Michigan liquor licensing statute had
"reference to churches and schoolhouses that are within the prohibited distance from the proposed saloon when the license
is granted, and not to those that are established and located within the prohibited distance after the license is granted"); see
also M.C. Dransfield, Annotation, "Church" or the Like, within Statute Prohibiting Liquor Sales within Specified Distance
Thereof, 59 A.L.R.2d 1439, 1442-43 (1958) ("Furthermore, it has been held that a statutory provision of the kind in
question does not apply to church property on which the construction of an edifice has begun but not completed . . . or to a
generally undeveloped vacant lot, leveled, plowed, and seeded by the church, which owned it, with the idea of using it as a
possible playground.") (footnotes omitted). Thus, as Trinity's existing buildings and the grounds in use by Trinity are
currently more than 300 feet away from Petitioner's nightclub, Petitioner is not statutorily barred from holding a restaurant
minibottle license at the proposed location because of its proximity to Trinity Episcopal Cathedral.
11. In addition to satisfying the statutory minimum distance requirements, I find that the proposed location is a suitable one
for Petitioner's beer and wine permit and restaurant minibottle license. The proposed location is situated in a commercial
area in downtown Columbia. There are no schools, residences, or playgrounds within close proximity of the proposed
location. And, except for Trinity, there are no churches in the immediate vicinity of the location. Further, while Trinity is
concerned that patrons leaving Petitioner's establishment will leave trash and other debris in its nearby parking lot, Trinity
has not shown that Petitioner has inadequate trash collection or insufficient parking for its business. Additionally, Trinity's
Cathedral Administrator testified that, during the months Petitioner has operated the proposed location as a teen club,
Trinity has had no problems, with litter or otherwise, in connection with Petitioner's operations. There is no evidence in
the record to suggest that the issuance of a beer and wine permit and restaurant minibottle license to the proposed location
will have an adverse impact on the surrounding community. Accordingly, the location is a suitable one for the beer and
wine permit and minibottle license.
B. Petitioner's Qualification for Licensure
12. S.C. Code Ann. § 61-2-100(C) (Supp. 2001) provides that "[i]f application is made for a license or permit under [Title
61] by a person other than an individual, all principals are deemed to be the applicant under Section 61-2-160," which
prohibits the Department from issuing an alcoholic beverage permit or license to an applicant with delinquent state or
federal taxes. See S.C. Code Ann. § 61-2-160 (Supp. 2001). S.C. Code Ann. § 61-2-100(D) (Supp. 2001) further provides
that "[t]he Department may not issue a license or permit under [Title 61] to any person unless the person and all principals
are of good moral character." S.C. Code Ann. § 61-2-100(H)(2)(h) (Supp. 2001) defines a "principal" of a business or
entity to include "an employee who has day-to-day operational management responsibilities for the business or entity."
While, in the case at hand, it is unclear exactly what, if any, ownership interest Mr. Ellis has in Petitioner's operations, it is
clear that, as the manager of Petitioner's club who has day-to-day operational management responsibilities for the business,
Mr. Ellis is a principal of Petitioner AK&W, Inc. However, because Petitioner's application did not list Mr. Ellis as the
day-to-day manager of Petitioner's club, the Department has not determined whether Mr. Ellis owes delinquent taxes or
whether Mr. Ellis is a person of good moral character, as evidenced by a lack of a criminal record. Therefore, the
Department must certify that Mr. Ellis has no delinquent taxes and has no criminal record before Petitioner can be issued its
beer and wine permit and minibottle license.
13. Despite this deficiency in Petitioner's application, this case need not be remanded in its entirety for review by the
Department. The sole issue raised in Intervenor's challenge to Petitioner's application is the suitability of the proposed
location, and this tribunal has sufficient evidence before it to reach a decision on that issue. And, as stated above, I find
Petitioner's proposed location suitable for the permit and license in question. Accordingly, upon a satisfactory finding by
the Department that Mr. Ellis has no delinquent state or federal taxes and has no criminal record, the Department shall issue
Petitioner its on-premises beer and wine permit and restaurant minibottle license.
IV. ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Department shall determine whether William E. Ellis, Jr., a manager and principal of
Petitioner AK&W, Inc., owes delinquent state or federal taxes and shall conduct a criminal background check on Mr. Ellis.
IT IS FURTHER ORDERED that, upon a satisfactory finding by the Department that Mr. Ellis owes no delinquent taxes
and has no criminal record, the Department shall issue Petitioner an on-premises beer and wine permit and a restaurant
minibottle license for the premises located at 1404 ½ Gervais Street, Columbia, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 19, 2002
Columbia, South Carolina
1. While there was conflicting evidence presented regarding the distance between the entrance to Petitioner's business and
the entrances to Trinity's parking lot, I find the measurements made by SLED Special Agent Sonya Ashford to be the more
credible, as SLED agents are routinely charged with making measurements under the Alcoholic Beverage Control Act and
are disinterested parties to this matter.
In cases tried without a jury, questions regarding the credibility and weight of evidence are exclusively for the court. State
v. Rosier, 312 S.C. 145, 149, 439 S.E.2d 307, 310 (Ct. App. 1993); Sheek v. Crimestoppers Alarm Sys., 297 S.C. 375, 377,
377 S.E.2d 132, 133 (Ct. App. 1989). Moreover, the trial judge, when trier of fact, is "in a unique position to observe the
parties as well as to judge the credibility of the witnesses and resolve the conflicts in their testimony." Woodall v.
Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 (1996) (emphasis added). Therefore, it is the duty of this tribunal, as the trier
of fact, to resolve the conflicting measurements of the distance between the proposed location and the cathedral. See, e.g.,
Wansley v. State, 798 So. 2d 460 (Miss. 2001) (holding that it was within the jury's discretion to resolve conflicting
evidence on the issue of whether a drug transaction took place within 1500 feet of a church); Dixon v. N.E. La. Power
Coop., Inc., 524 So. 2d 35 (La. Ct. App. 1988) (deferring to the trial judge, as trier of fact, to resolve conflicting evidence
regarding the distance between a mobile home and nearby power lines). |
