ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et
seq. (1986 & Supp. 2001) for a contested case hearing. Petitioner Earl Black seeks an on-premises beer and wine permit
for a nightclub located at 6308 Highway 29 South, Starr, South Carolina. The South Carolina Department of Revenue
(Department) would have granted the permit but for a protest from M. Susan Lewis on behalf of the residents of a nearby
neighborhood regarding the suitability of the nightclub's proposed location and a protest from Scott Dawson concerning a
question as to the legal leaseholder of the premises sought to be permitted. Accordingly, the Department was excused from
the hearing of this matter. After notice to the parties and the protestants, a hearing was conducted on November 14, 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, Petitioner's application for an on-premises beer and wine permit
is hereby denied.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, 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. Petitioner Earl Black submitted an application for an on-premises beer and wine permit to the Department on July 1,
2002, for the premises located at 6308 Highway 29 South, Starr, South Carolina. This application is incorporated into the
record by reference.
2. The proposed location is situated in a rural portion of Anderson County, South Carolina, along Highway 29, a two-lane
highway running between Hartwell, Georgia, and Anderson, South Carolina. The location is adjacent to a liquor store and,
to the rear, borders on a residential neighborhood. Seven residences in this neighborhood lie within several hundred yards
of the proposed location. Two residences are situated immediately behind the location, separated only by a privacy fence
from the property. Measured along the public thoroughfare, the entrances of these residences are 654 feet and 871 feet,
respectively, from the entrance of the proposed nightclub. However, measured directly between the nearest residence and
the proposed location, the two buildings are less than 200 feet apart.
3. The proposed location has been operated as a bar/nightclub for the past fifteen to twenty years. Most recently, the
location was operated by protestant Scott Dawson as a bar known as the Borderline from 1999 to 2000, when the
establishment was damaged by a fire and subsequently closed. At the hearing, Brian and Jennifer Howland, the occupants
of the residence located directly behind the proposed location, testified regarding their experiences with prior
establishments at the location. The Howlands described numerous problems related to the previous activities at the
proposed location, most notably noise disturbances caused by outdoor activities at the location, loud music inside the
establishment, and the revving of car and motorcycle engines until late in the night. The Howlands also testified to having
witnessed illegal drug activity at the location, to having had intoxicated individuals trespassing on their property, and to
having been concerned for the safety of their children after their home was broken into and the establishment was burned in
what they believe to have been an act of arson.
4. Since the fire at the location, Sonco Amusement, Inc., the owner of the property, has repaired the exterior of the location,
and Petitioner, the new lessee of the property, has refurbished the interior of the establishment at a cost of several thousand
dollars. Petitioner's refurbishment included the addition of new walls with good sound insulation. (1) Petitioner intends to
operate the location as a bar/nightclub. The establishment will feature music played from a jukebox and will be open for
business Monday through Saturday between the hours of 3 p.m. and 2 a.m., except on Saturday when the establishment will
close at midnight.
5. Protestant M. Susan Lewis, Brian Howland, and Jennifer Howland, residents of the neighborhood adjoining the proposed
location, oppose Petitioner's application because they are concerned that, given the proximity between the location and
their neighborhood, Petitioner's proposed operations will have a significant adverse impact on the families living in the
residential community. Protestant Scott Dawson contends that he is the rightful leaseholder of the proposed location, (2) and
urges this tribunal to refrain from issuing a decision in this matter until a court of competent jurisdiction can resolve the
dispute over the true leaseholder of the property. (3)
6. In response to these protests, Petitioner maintains that he does, in fact, have a valid lease to the proposed location and
further contends that, given his refurbishment of the establishment, the privacy fence between the establishment and the
neighborhood, and his stipulation to refrain from outdoor activities, his operations at the location will not adversely affect
the surrounding community.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction over this case 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); see also Wall v. S.C. Alcoholic Beverage Control Comm'n, 269 S.C. 13, 235
S.E.2d 806 (1977).
3. S.C. Code Ann. § 61-4-520 (Supp. 2001) establishes the criteria for the issuance of a beer and wine permit. Included in
the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7).
4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
and suitability of a particular location for the requested permit. 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. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); 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, at 501 (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) (emphasis added).
9. 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 the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).
10. 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). Further, the trial judge who observes a witness is in the
best position to judge the witness's demeanor and veracity and to evaluate the credibility of his testimony. See, e.g.,
Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 389 S.E.2d 448 (Ct.
App. 1990).
11. In considering the nature of Petitioner's proposed activities and the proximity of the proposed location to a residential
community, I find that the proposed location is unsuitable for an on-premises beer and wine permit. There are inherent
consequences from the operation of a nightclub that are not conducive to the harmonious coexistence of such a club with a
surrounding residential community. The residents of the neighborhood adjoining 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 nightclubs generally and that have been associated with previous establishments at this
particular location.
Further, the mere fact that the location was permitted for the sale of beer and wine 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 bar/nightclub. Similarly, the fact that the proposed
location is adjacent to a licensed liquor store does not render the location suitable for an on-premises beer and wine permit;
a liquor store selling alcohol for off-premises consumption simply does not engender the sorts of problems associated with
establishments that allow patrons to congregate and consume beer and wine on their premises, with the attendant
merrymaking and disturbances to neighbors resulting from such gatherings.
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. See Byers, 305 S.C. at 246, 407 S.E.2d at 655. Here, there are several residences within a few hundred feet of the
location, two of which are located immediately behind the property and are separated from the location only by a privacy
fence. 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.
12. This tribunal is respectful of the fact that Petitioner has expended time and resources in attempting to secure the permit
in question. And, this tribunal does not question Petitioner's sincerity in his attempt to eliminate 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 would have an adverse impact on
the community. See Kearney, 287 S.C. at 327, 338 S.E.2d at 337 (upholding the 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. The issuance or denial of a permit rests within the sound discretion of this tribunal as the trier of fact in this case.
Inherent in the power to issue a permit is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972).
Refusal of the permit in the instant case is compelled because, given the proximity of the proposed location to a residential
community, the issuance of the requested permit would be detrimental to the residents of the community surrounding
Petitioner's establishment.
ORDER
Based upon the Findings of Fact and Conclusions of Law above,
IT IS HEREBY ORDERED that Petitioner's application for an on-premises beer and wine permit for the premises
located at 6308 Highway 29 South, Starr, South Carolina, is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
November 21, 2002
Columbia, South Carolina
1. In order to further alleviate the concerns of nearby residents, Petitioner has also stipulated that he will not conduct
outdoor activities at the location after dark.
2. Specifically, Mr. Dawson contends that Sunco Amusement's efforts to evict him after the fire at the location were
ineffective, and that its subsequent decision to lease the property to Petitioner was in violation of his lease.
3. As Mr. Dawson recognizes, any challenge to the validity of Petitioner's lease must be raised in a forum with jurisdiction
to determine such matters. This tribunal's adjudication of this case will therefore be confined to the question of whether
Petitioner satisfies the statutory and regulatory requirements for the requested license. |