ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310
et seq. upon an application for an on-premises beer and wine permit and a minibottle license for 2305
Taylor Street, Columbia, South Carolina, by Ronald I. Paul, on behalf of Midnight, Inc., d/b/a
Midnight Lounge, filed with the Department of Revenue and Taxation (DOR). A hearing was
requested by the applicant upon the receipt by DOR of written protests. A hearing was held on
May 3, 1994, in accordance with the Administrative Procedures Act with notice to all parties and
protestants. The issues considered were the applicant's eligibility to hold a permit; the suitability of
the proposed business location; and, the nature of the proposed business activity. The applications
are ordered to be issued provided the applicant agrees to certain restrictions.
FINDINGS OF FACT
Notice of the time, date, place, and subject matter of the hearing was given to the applicant,
protestants, SLED, and DOR.
The applicant seeks an on-premises beer and wine permit and minibottle license for a location
at 2305 Taylor Street, Columbia, South Carolina, having filed an application with DOR, AI no.
97200, on January 13, 1994. The applicant filed the application as president of Midnight, Inc., a non-profit corporation incorporated under the laws of the state of South Carolina on January 10, 1994.
I find that Midnight, Inc. is a bona fide nonprofit organization with a reputation for peace and good
order in the community. Mr. Paul, as president and principal is of good moral character.
The location is currently being operated as a non-private lounge by the applicant and holds
a beer and wine permit in the name of the applicant as an individual, permit no. BW 428092.
Applicant attempted to serve food at the location and have a minibottle license granted in
1993. That request was denied at a hearing on the grounds that the business was not primarily and
substantially engaged in the preparation and serving of meals.
Subsequently, the applicant incorporated the non-profit corporation and now seeks to operate
the lounge as a private club. He testified that if the club sale and consumption license is not granted,
he will continue to operate the lounge under the existing beer and wine permit issued to him
individually.
Midnight Lounge is open Wednesdays and Thursdays from 9:00 p.m.-3:00 a.m. and Fridays
and Saturdays from 9:00 p.m.-4:00 a.m. Applicant testified that no alcohol is served after 2:00 a.m.,
12:00 midnight on Saturdays. Patrons dance, play video games, and socialize from the time the bar
service ends until the lounge closes.
The club is located in an urban area, in close proximity to a church, schools, a playground,
commercial retail businesses, government housing projects, and major traffic and pedestrian
thoroughfares. The evidence indicates that the location is not within three hundred feet of any
church, school, or playground, however.
Fathers Martin Iott, John Keefer, Bruce Schultz, and Sister Carol Bongaarts appeared and
testified at the hearing in opposition to the applications. The protestants work and most live at St.
Martin de Porres Catholic Church across the street from the lounge. St. Martin de Porres is also a
school and priory with 200 students attending and five staff members living at the school at 2229
Hampton Street.
Protestants complain that the lounge creates excessive noise, especially around closing time,
which interferes with their sleep, rest, and peace. Additionally, they complained of litter in the area
and the undesirable effect the club and its patrons have on the students of St. Martin's and the
residents of the surrounding area. School hours do not coincide with the club's business hours,
though extra-curricular activities sometime require students to return to campus at night. Protestants
admitted that they could not attribute the litter problem directly to the Midnight Lounge, nor could
all of the noise be directly attributed to the club. Pedestrians and cars with loud stereos and "boom
boxes" travel the street incessantly. Taylor Street is a busy city street with constant traffic throughout
the day and night.
Applicant has met with one or more of the protestants on several occasions to discuss their
complaints. Protestants concur that the applicant has been receptive to their concerns and has made
good faith efforts to control the situation; however, protestants assert that the noise is inherent to the
operation of the lounge and can not be kept at a tolerable level as long as the club is in operation.
Protestants claim that granting a minibottle license would worsen the problem.
Applicant has had a contract with Belmont Security Co. since January, 1994, for armed
security guards to patrol the location and adjacent parking lots during the club's hours of operation.
Double steel doors have been installed at the location to limit the amount of noise escaping from the
location when patrons enter and exit.
Applicant also currently holds a retail liquor license for Paul's Liquor Store. He has never
been cited for a violation at either licensed location.
I find that the applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than one year. The
applicant has not had a permit revoked in the last two years. The applicant, who intends to be the
manager of the business, is of good moral character.
Notice of the application appeared in a newspaper of general circulation in the area of the
proposed location for three consecutive weeks and was posted at the proposed location for fifteen
days.
At the hearing the applicant agreed to be bound by certain restrictions as a condition of being
granted the permit/license. he agreed to meet with the protestants to put a volume limit device on the
juke box and to assign a security guard to the parking lot during closing time to attempt to make
patrons leave in an orderly manner. Applicant also stated that he would adhere to such other
reasonable restrictions as a condition of the issuance of the permit/license.
Accordingly, I find the proposed location and business activity are suitable and proper and
the issuance of a beer and wine permit and minibottle license would not have an adverse effect on the
surrounding community under the following conditions:
(1) Applicant must place a volume limitation device on the juke box at the location
to keep the maximum volume to a level that the music can not be heard by residents
of 2229 hampton Street;
(2) Applicant must have a security guard assigned to the parking lot during closing
time to require patrons to leave the premises in an orderly manner rather than loiter
and make noise;
(3) Applicant must close the Midnight Lounge no later than 2:00 a.m. any night of
operation.
CONCLUSIONS OF LAW
S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge
Division is empowered to hear all cases previously heard by the former Alcoholic Beverage Control
Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
In regard to the issuance of beer and wine permits, S.C. Code §61-9-320 (Supp. 1993)
provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or shareholder, and each agent, employee, and servant of the
applicant to be employed on the licensed premises, are of good moral character;
(2) The retail applicant is a legal citizen of this State and of the United States and has been
a citizen maintaining his principal residence in South Carolina for at least thirty days prior to
application;
(3) The applicant has not had a beer and wine permit revoked in the last two years;
(4) The applicant is twenty-one years of age or older;
(5) The location of the proposed place business is in the opinion of the department a proper
one. The department may consider, among other factors, as indications of unsuitable location, the
proximity to residences, schools, playgrounds, and churches. This item does not apply to locations
licensed before its effective date;
(6) Notice of application has appeared at least once a week for three consecutive weeks in
a newspaper most likely to give notice to interested citizens of the county, city, or community in
which the applicant proposes to engage in business;
(7) Notice has been given by displaying a sign for fifteen days at the site of the proposed
business.
A permit must not be issued under S.C. Code §61-3-730 (Supp. 1993) if the applicant is not
a suitable person to be licensed; the place of business is not a suitable place; or a sufficient number
of licenses have already been issued in the State, municipality, or community.
A license for sale and consumption of alcoholic beverages must not be granted unless the
provisions of S.C. Code §61-5-50 are met. In addition to many of the same requirements contained
in §61-9-320, §61-5-50 also requires that the minibottle licensee be either a bona fide nonprofit
organization or conduct a bona fide business engaged primarily and substantially in food preparation
and service or furnishing of lodging.
The factual determination of whether or not an application is granted or denied is usually the
sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC
Commission, 317 S.E.2d 476 (S.C. App. 1984). As the trier of fact, an administrative law judge is
authorized to determine the fitness or suitability of the proposed business location of an applicant for
a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC
Commission, 316 S.E.2d 705 (S.C. App. 1984). It is also the fact finder's responsibility to judge the
demeanor and credibility of witnesses and determine the relevance and weight of any testimony and
evidence offered.
In determining whether a proposed location is suitable any evidence adverse to the location
may be considered. The proximity of a location to a church, school, or residences is a proper ground,
by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers
v. S.C. ABC Commission, ___ S.C. ___, 407 S.E.2d 653 (1991). The determination is not
necessarily a function solely of geography, however. It may involve 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. 335 (1985).
S.C. Code §61-9-340 (Supp. 1993) states that upon a determination that an applicant meets
the criteria set forth above and has not misstated or concealed a fact in the application, DOR must
issue the permit after payment of the prescribed fee.
ABC Commission Regulation 7-88 authorizes the imposition of restrictions to permits. The
regulation reads:
Any stipulation and/or agreement which is voluntarily entered into by an
applicant for a beer and wine permit between the applicant and the South Carolina
Alcoholic Beverage Control Commission, if accepted by the Commission, will be
incorporated into the basic requirements for the enjoyment and privilege of obtaining
and retaining the beer and wine permit and which shall have the same effect as any and
all laws and any and all other regulations pertaining to the effective administration of
beer and wine permittees.
In the event that evidence is presented to this Commission that any part of the
stipulation or agreement is or has been knowingly broken by the permittee will be a violation
against the permit and shall constitute sufficient grounds to suspend or revoke said beer and
wine permit.
Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights
or property. They are privileges granted in the exercise of the police power of the state to do what
otherwise would be unlawful to do and to be used and enjoyed only so long as the restrictions and
conditions governing them are complied with. As the tribunal authorized to grant the issuance of a
permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place
restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission,
203 S.C. 49, 26 S.E.2d 22 (1943).
Effective July 1, 1993, the Alcoholic Beverage Control (ABC) Commission ceased to exist.
S.C. Code § 1-30-95 (Supp. 1993) transferred the administrative duties of the former ABC
Commission to DOR. S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina
Administrative Law Judge Division is empowered to conduct and decide all hearings previously heard
by the former ABC Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
I conclude that the applicant has carried his burden of proof in establishing that he
meets the requisite standards for issuance of the permit/license applied for under the condition that
he agree to adhere to the following conditions in the form of written stipulations:
(1) Applicant must place a volume limitation device on the juke box at the location
to keep the maximum volume to a level that the music can not be heard by residents
of 2229 hampton Street;
(2) Applicant must have a security guard assigned to the parking lot during closing
time to require patrons to leave the premises in an orderly manner rather than loiter
and make noise;
(3) Applicant must close the Midnight Lounge no later than 2:00 a.m. any night of
operation.
A breach of any of the above conditions is considered a violation against the permit/license
and may result in a fine, suspension, or revocation.
IT IS THEREFORE ORDERED that DOR issue to the applicant an on-premises beer and
wine permit and minibottle license only upon payment of the prescribed fees and the applicant
submitting a written and signed stipulation agreeing to adhere to the following restrictions and
conditions:
(1) Applicant must place a volume limitation device on the juke box at the location
to keep the maximum volume to a level that the music can not be heard by residents
of 2229 hampton Street;
(2) Applicant must have a security guard assigned to the parking lot during closing
time to require patrons to leave the premises in an orderly manner rather than loiter
and make noise;
(3) Applicant must close the Midnight Lounge no later than 2:00 a.m. any night of
operation.
Applicant's refusal to agree to the above restrictions is considered as a denial of the
application by this court on the basis of unsuitability of location, with the appllicant still entitled to
operate the lounge under the existing beer and wine permit held by him individually.
IT IS FURTHER ORDERED that a violation of any of the above conditions is considered
a violation against the permit/license and may result in a fine, suspension, or revocation.
___________________________
STEPHEN P. BATES
Administrative Law Judge
May 13, 1994
Columbia, South Carolina |
