ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division on the application of
Kenneth Connor for an on-premises beer and wine permit for a bar and grill located at 94 Spring
Street in Charleston, South Carolina. After notice to the parties, a hearing was conducted on
September 14, 1994. Based upon the testimony of the witnesses and the evidence presented, I
make the following:
FINDINGS OF FACT
1. The applicant, Kenneth Connor is a legal resident of the United States and has
been a resident of South Carolina since birth. He was born on January 10, 1937.
2. Connor has no criminal record and is retired from the armed services. He is a
person of good moral character.
3. He has never been issued a beer and wine permit or any other type of alcoholic
beverage license and has never had one revoked or suspended.
4. Notice of the application was published in The Post and Courier in Charleston
and was posted at the location for the time required by law.
5. The applicant intends to operate the location as a family type pizza parlor. The
business would be more successful to the applicant if allowed to sell beer and wine for on -premises consumption. The location would be open Monday through Saturday from 11:00 a.m.
to 11:00 p.m. The location is currently open selling pizza during the hours specified. During his
time in the military, the applicant operated and managed an officers' club and was responsible for
pizza concessions. Included in this operation was the service of beer and wine.
6. The location on Spring Street is a mixture of residences and businesses. The
businesses are directly across the street from the location and the residences surround the
businesses. There are a few locations that sell beer and wine within 100 yards of the location.
7. The bar and grill has been licensed by the Alcoholic Beverage Control Commission
or the Department of Revenue and Taxation for the past fifteen years. The applicant owns the
property and while stationed with the military in Germany leased the premises to others. During
the time in which the property was leased as a bar and grill there were numerous complaints. The
applicant states he had no knowledge of the problems. These complaints are the subject of the
protests submitted by the Charleston police and the residents.
8. The complaints about the location from the Charleston police involve the
management of the location under a previous licensee who operated a disco and nightclub. The
complaints were loud noise, crowd control, and loitering. Although the officer presented a
computer printout of the complaints in the vicinity, he did not know the specific facts surrounding
each incident and could not testify that the incidents were directly related to the operation of the
location.
9. The Elliotborough Neighborhood Association represents a group of homeowners
and residents living within approximately 20 blocks including Spring Street. A petition was
signed by 116 members of the neighborhood showing their opposition to the application. The
complaints involve loitering, vandalism, trespassing, public nuisance, and fighting. The problems
were prevalent during the operation of the disco and nightclub. The residents do not oppose the
pizza parlor but object to the sale of beer and wine because they feel the patrons could become
unruly. If beer and wine is allowed on the premises they would "feel better" if the location closed
by 11:00 p.m.
10. Although not in the immediate vicinity, there is a church ministry which houses ten
men recovering form alcohol and drug abuse. Concern was expressed that these men would be
tempted to return to the use of alcohol if it were available. However, there are a number of other
locations in the vicinity that also sell beverages with an alcohol content.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division is vested with the powers, duties and
responsibilities exercised by the former Alcoholic Beverage Control Commission and hearing
officers pursuant to Chapter 23 of Title 1. S.C. Code of Laws §61-1-55 (Supp. 1993).
2. S. C. Code §61-9-320 (Supp. 1993) provides the statutory requirements for the
issuance of beer and wine permits. It states in part:
No permit authorizing the sale of beer or wine may be issued unless:
...
(6) The location of the proposed place of business of the applicant 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.
S.C. Code §61-9-320 (6) (Supp. 1993).
3. Although "proper location" is not statutorily defined, "rather broad discretion is
vested in the Commission in determining the fitness or suitability of a particular location." Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This determination of
suitability is not solely a function of geography, but involves an infinite variety of considerations
related to the nature and operation of the proposed business and its impact upon the community
where it is to be situated. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel
v. S.C. ABC Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).
4. In addition, proximity of a location to a church, school, playground, or residence is
a proper ground, by itself, on which the location may be found unsuitable for a permit to sell beer
and wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653 (S.C. 1991). The
proposed location is not in close proximity to any of these entities.
5. The location is near residences but is in a business area. The reasons the residents
are protesting is based upon the activities of the former operator of the bar. The residents have
no objections to a pizza parlor and no objection to the location closing at 11:00 p.m. but fear that
the same conduct will occur again. The applicant has a history in the operation of pizza
establishments and in the operation of food businesses that sell beer and wine. There is no
evidence to suggest that the fears of the residents would be substantiated by the operation of this
particular business by this applicant.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that
the Department of Revenue and Taxation issue an on-premises beer and wine permit to the
applicant, Kenneth Connor for a pizza parlor located at 94 Spring Street in Charleston, upon the
payment of the appropriate fees.
AND IT IS SO ORDERED.
___________________________________
ALISON RENEE LEE
Administrative Law Judge
October _____, 1994
Columbia, South Carolina |
