ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an on-premises beer and wine permit and sale and consumption (minibottle) license for 104 Frontage
Road, Clemson, South Carolina, by Jeffrey Stewart, filed with the South Carolina Department of
Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on July 25, 1994.
The issues considered were: (1) the applicant's eligibility to hold a permit; (2) the suitability of the
proposed location; and (3) the nature of the proposed business activity. The permit and license
applications are hereby granted, with restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) The applicant seeks an on-premises beer and wine permit and minibottle license for
104 Frontage Road, Clemson, South Carolina, having filed applications with DOR, AI #98226
and #98580, on April 1 and April 27, 1994.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, the South Carolina Law Enforcement Division (hereinafter referred to as
"SLED"), and DOR.
(3) The proposed location is in a commercial area zoned for commercial usage, within the
municipal boundaries of the City of Clemson, adjacent to a residential neighborhood.
(4) The proposed location will be a cafe that serves lunch, dinner, appetizers, and
beverages, with a substantial portion of the business dedicated to food preparation and service.
(5) There are several other licensed locations within close proximity to the proposed
location.
(6) The intended hours of operation are 11:00 a.m. - 2:00 a.m., Monday through Friday;
11:00 a.m. - 12:00 midnight, Saturday. Meals will be served until 8:00 p.m., with appetizers
available until closing.
(7) The proposed location will seat approximately 80 people.
(8) The parking lot of the proposed location has 24 marked spaces.
(9) The proposed location has been previously licensed to sell alcoholic beverages under
at least three prior operators.
(10) Under previous licensees, the proposed location has had a history of parking
problems, with patrons parking on the shoulder of the frontage road and creating traffic risks.
(11) Under previous licensees, the proposed location has been the source of noise
complaints from the neighboring residents.
(12) Previous licensees allowed live bands to perform on an outdoor patio at the rear of
the establishment.
(13) Previous licensees allowed patrons to loiter in the parking lot of the proposed
location.
(14) Applicant expressed a willingness to limit live music on the patio and have an
employee patrol the parking area.
(15) Applicant expressed willingness to increase parking spaces at the proposed location.
(16) 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.
(17) 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.
(18) The applicant has never had a license or permit revoked.
(19) The applicant is of good moral character.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1993) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the applicable criteria for the
issuance of a beer and wine permit.
(3) S.C. Code Ann. § 61-3-420 (Supp. 1993) provides the requirements to be met by an
applicant seeking a liquor license.
(4) Pursuant to S.C. Code Ann § 61-3-730 (Supp. 1993), a permit or license must not be
issued 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.
(5) S.C. Code Ann. § 61-3-440 (Supp. 1993) dictates that a licensed location located
within a municipality must be a minimum of three hundred feet (300') from any church, school, or
playground.
(6) No schools or playgrounds are within the prescribed proximity to render the proposed
location unsuitable.
(7) The determination of suitability of the proposed location is not necessarily a function
solely of geography. 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).
(8) S.C. Code Ann. § 61-1-70 (Supp. 1993) provides for the adoption of rules and
regulations to carry out the provisions of the Alcohholic Beverage Control Act.
(9) 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to
permits, provides:
Any stipulation and/or agreement which
is voluntarily entered into by an applicant
in writing 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.
(10) 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).
ORDER
IT IS THEREFORE ORDERED that DOR issue the on-premises beer and wine permit
and sale and consumption license applied for, with the following restrictions and conditions, upon
the applicant signing a written agreement to be filed with DOR to adhere to the stipulations set
forth below:
(1) Outdoor live music is prohibited at the proposed location after 10:00 p.m.;
(2) Live music inside the proposed location is prohibited after midnight;
(3) On every night of operation, from 10:00 p.m. until closing, Applicant or his
designated employee will patrol and monitor the parking area of the proposed location
periodically to insure patrons do not loiter in the parking lot or create disturbances;
(4) No later than six months from the date of issuance of the permit and license applied
for, Applicant will provide for at least fifty total parking spaces at the proposed location.
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
July 27, 1994
Columbia, South Carolina |
