SC Administrative Law Court Decisions

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. Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protests it received, these applications would have been granted. This motion was granted by my Order dated January 16, 2002. A hearing was held on February 27, 2002, at the offices of the Division in Columbia, South Carolina.

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 and the Protestant(s), 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 Protestants, 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 Laval's, located at 3201 Broad Street, Sumter, South Carolina. Alphonza L. Glasscho, Sr., is the president of Laval's, which is incorporated under the laws of South Carolina. Laval's currently has approximately ten (10) members with a minimum age requirement of twenty-one (21). The main purpose of this organization is to sponsor musicians and to allow a place for them to meet and play. This location has been previously permitted in the past and other licensed locations are in the general vicinity of Laval's. The Petitioner testified that his hours of operation will be:

a. 7:00 p.m. to 2:00 a.m., Thursday through Sunday; with

b. 2:00 p.m. to 6:00 p.m. happy hours on those days.

3. Laval's currently offers hot sandwiches and pre-cooked items, with plans to expand its menu at a later date upon receiving its license and permit. However, Laval's does not currently hold a "Grade A" health permit from the Department of Health and Environmental Control.

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

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

6. 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.

7. Sheriff Tommy Mims appeared to protest this permit. However, no residents from the nearby subdivision protested these applications

The proposed location is in an area that is currently both commercial and residential. However, the nearby residential subdivision has grown rapidly since the mid-1990s. As a result, the Sumter County Sheriff's Office has received numerous calls regarding noise emanating from other clubs in the area. Those calls have been a burden upon the Sheriff's Office because of the lack of man-power to patrol the area. There was, however, no evidence presented regarding noise complaints for this particular location.

Therefore, I find that because the location has been previously permitted for the sale of beer and wine, granting the permit in light of the present circumstances will not alter the integrity of the neighborhood or create an overall adverse impact on the community. Consequently, I find that the proposed location is suitable for an on-premise beer and wine permit. However, this finding of suitability is dependant on strict compliance with the restrictions set forth below. ⁽¹⁾ That restriction is necessary to protect the current integrity of the community and to insure that the location does not become a burden upon law enforcement. Accordingly, the proposed location will not be suitable if the Petitioner does not comply with the restriction below and the Department could properly bring an action to revoke the Petitioner's permit.

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

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

3. 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 the business 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. . . ."

4. 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.

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. S.C. Code Ann. § 61-6-1820 (1) provides that the applicant may receive a license upon the finding that "[t]he applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging." S.C. Code Ann. § 61-6-20 (6)(Supp. 2000) defines a "nonprofit organization" as "an organization not open to the general public, but with a limited membership and established for social, benevolent, patriotic, recreational, or fraternal purposes."

6. 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, the applicant is president, secretary and treasurer of the organization. The remaining office is filled by his brother who is the organization's vice-president. However, 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. In fact, the bylaws set forth that the president is the sole person who approves membership in the organization. ⁽²⁾

7. 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).

8. 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 licensed at the time of this application has bearing on the consideration of suitability. Also, the fact that there is a licensed establishment adjacent to the location 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.

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 Laval's 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:

The Petitioner and its employees shall not allow excessive noise to emanate from Laval's. After 10:00 p.m., any noise that is noticeably audible within any local residence 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.

IT IS FURTHER ORDERED that a violation of the above restriction be considered a violation against the permit (and license if issued) 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 Laval's is denied.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

March 21, 2002

Columbia, South Carolina

1. Additionally, because of the proximity of the proposed location to residents and the nature of the surroundings clubs, I find that if a nonprofit private club minibottle license is granted, that the age requirement of Laval's members should be raised to twenty-five (25) and the location should stop serving beer, wine or alcohol no later than 1:00 A.M.

2. Whether that procedure sets forth an acceptable "fixed method" of electing individuals to membership in the organization that bears "some reasonable relation to the object and purpose of the organization" is questionable. See 23 S.C. Code Ann. Regs. 7-17 (B)(1976) ("The bona fide nonprofit organization must have a definite fixed method of electing persons on an individual basis to membership in the organization; such method must be described in the club's bylaws and must bear some reasonable relation to the object and purpose of the organization.")