ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C.
Code Ann. §§ 61-1-55, et seq. (Supp. 1993) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev.
1986 and Supp. 1993) for a hearing pursuant to the application of Floyd C. Hinsby, Jr., The
Carousel Corporation, d/b/a Clancy's Too, ("applicant") for an on-premise beer and wine
permit (AI 99327) at 104 North Clemson Avenue, Clemson, Pickens County, South Carolina
("location").
A hearing was held on December 20, 1994, at the Anderson County Courthouse,
Anderson, South Carolina. Notice of the time, date, place and nature of the hearing was
timely given to all parties including the protestants. The issues considered were: 1) the
suitability of the proposed location, and 2) the nature of the proposed business location.
The application was protested by the City of Clemson Police Department, Jeff
McAleer, Eric Mills and Isaac Keller, all appearing and testifying. The City of Clemson
wished to be made a party and its motion was granted.
The application requested by the Petitioner is granted with restrictions.
EXHIBITS
Without objection, copies of those portions of the department's file set forth hereafter
were made a part of the record:
1. application by petitioner for on-premise beer and wine permit, rental agreement
and source of funds statement (with attachments)
2. affidavit of publication notice in The Messenger for the permit
3. articles of incorporation of the Carousel Corporation
4. sketch of proposed location
5. investigative report by SLED dated July 26, 1994
6. protest letter by Johnson W. Link, Police Chief, Clemson, South Carolina
7. criminal history report from SLED
8. protest letter by Jeff McAleer
9. protest letter by Eric Mills
10. protest letter by Isaac L. Keller
Also, the Petitioner introduced a reference letter by Jack Olson, General Manager,
Honda of Greer, and the Respondent/City of Clemson, introduced seven (7) photographs of
the location, all of which were made exhibits without objection.
SUMMARY OF THE TESTIMONY
John Drostee, former owner of the location, testified he had purchased it for his son
who operated it as a sports bar serving alcoholic beverages and pizza for approximately one
and a half (1 1/2) years. Due to his son's health problems, Mr. Drostee sold the business and
assigned the remainder of the lease at the location to the Petitioner, Floyd C. Hinsby, Jr., in
1994. He testified there was no protest filed when his son applied for the previously issued
on-premise beer and wine permit. He further testified to management problems with a
Russell Youngblood.
The applicant/Petitioner testified next to the following:
1. He is 52 years of age, a former tool and die maker of 33 years and presently
lives in Simpsonville, South Carolina.
2. He has operated a bar called Clancy's in Fountain Inn, South Carolina since
1988.
3. He has had no complaints from law enforcement or neighbors at his Clancy's
bar.
4. He purchased the present location in June 1994 and has invested $54,000 in
this business.
5. He intends to serve pizza, sandwiches and sell beer and wine at the location.
6. The location will have music, pool tables and pinball machines but no live
bands.
7. The hours of operation will be 5:00 or 6:00 p.m. to 1:30 a.m. Monday through
Friday and 5:00 p.m. to 12:00 a.m. on Saturday. The location will be closed on Sundays.
Petitioner concluded his testimony by stating that he has no plans to operate the
location as a private club.
Jeff McAleer, who for the last twenty (20) years has owned and operated a bicycle
sales and service store next to the location, testified next. He stated that when the location
was first seeking a permit in 1987, he wrote a letter in a favor of it, the applicant being the
brother of the Clemson police chief. He stated that as ownerships changed, there was a
gradual demise in the location's operation with patrons urinating outside. He stated there has
been no problem since the last bar closed.
Isaac Keller, who lives approximately two hundred feet (200') from the location across
the street, corroborated the testimony of Jeff McAleer as to the urination problem and
protested the permit issuance.
Harry Miles, who also lives across the street from the location, testified that the bar
has been a "real problem", particularly because of patrons urinating in the front yards. He
stated that although the applicant is not a bad person, he just doesn't think anyone can
operate the location and control the situation.
Chief Johnson Link testified, protesting the issuance of the permit, stating there are
forty-nine (49) licensed locations in Clemson, South Carolina and there is a problem with
underage drinking. He testified to cases made for indecent exposure at the location.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. The applicant is seeking an on-premise beer and wine permit for a sportsbar
located at 104 North Clemson Avenue, Clemson, Pickens County, South Carolina.
3. The applicant is of good moral character.
4. The applicant has been a legal resident of South Carolina for over thirty days
and maintained his principal place of abode in South Carolina for over thirty days.
5. The applicant has never had a beer and wine permit or mini-bottle license
revoked.
6. Notice of the applications have appeared at least once a week for three (3)
consecutive weeks in The Messenger, a newspaper of general circulation in the local area
where the applicant proposes to engage in business.
7. Notice of the application has been given by displaying a sign for a minimum
of fifteen (15) days at the site of the proposed location.
8. The applicant intends to own, manage and operate a sports bar at the location
six days a week with the hours of operation from 5:00 or 6:00 p.m. to 1:30 a.m. on Monday
through Friday and from 5:00 or 6:00 p.m. to 12:00 a.m. on Saturday.
9. There are no schools, churches or playgrounds in close proximity to the
proposed location.
10. The property is located in a mixed commercial/residential area in the municipal
limits of Clemson, South Carolina.
11. The applicant is over twenty-one (21) years of age.
12. There will be no live music/bands at the location.
13. The applicant will have pool tables and video machines at the location.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the
following:
1. S.C. Code Ann. Section 1-23-600 (Supp. 1993) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative
Procedures Act.
2. S.C. Code Ann. Section 61-1-55 (Supp. 1993) grants to the Administrative Law
Judge Division the powers, duties and responsibilities as a hearing officer in protested and
contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. Section 61-9-320 (Supp. 1993) sets forth the requirements for
the issuance of an on-premise beer and wine permit.
4. S.C. Code Ann. § 61-3-440 (Supp. 1993) prohibits the issuance of a liquor
license for on-premise consumption to an applicant if the place of business (location), if
located inside a municipality, is within three hundred feet (300') of a church, school or
playground. However, locations for which beer and wine permits are requested are not
subject to those specific restrictions.
5. As 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).
6. Although "proper location" is not statutorily defined, broad discretion is vested
in the Division in determining the fitness or suitability of a particular location. Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
7. Although there has been testimony that the present location is unsuitable and
is not a fit location, such was not sufficient to deny the issuance of the requested permit with
specific limitations and conditions as to the time of operation, policing of patrons and control
of noise.
8. Permits and licenses issued by the State for sale of liquor, beer, and wine are
not rights or property, but are rather privileges granted in the exercise of the police power
of the State 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).
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. 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
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).
11. It is concluded that the applicant meets all of the statutory requirements for
holding a retail beer and wine permit and accordingly, I conclude that the proposed location
is a proper one for the granting of an on-premise beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Floyd C. Hinsby, Jr. for an on-premises beer and
wine permit at 104 North Clemson Avenue, Clemson, Pickens County, South Carolina be
granted, with the following restrictions and conditions, upon the applicant signing a written
agreement to be filed with the South Carolina Department of Revenue and Taxation to
adhere to the stipulations set forth below:
1. Floyd C. Hinsby, Jr. and his employees shall prohibit loitering and the
consumption of beer and/or wine by its patrons/customers in the parking lot and exterior area
of the proposed location and shall strictly enforce the prohibition.
2. Floyd C. Hinsby, Jr. and his employees shall patrol the parking areas and
surrounding areas outside the location to ensure patrons and customers of the proposed
location do not urinate in neighbors' yards, parking areas or adjacent business locations.
3. Applicant will not employ Russell Youngblood, nor allow him on the premises
of the proposed location.
4. There will be no live music, live bands or exterior/outside speakers at the
proposed location. All other music will be kept to a minimum. All exterior doors will
remain closed.
5. The location will conform to all municipal codes and ordinances.
6. Floyd C. Hinsby, Jr., will employ a doorman at the location at all times.
7. The hours of operation will be from 5:00 p.m. to 12:00 a.m. Monday through
Saturday with the location closed on Sunday.
IT IS FURTHER ORDERED that a violation of any one of the above conditions is
considered a violation against the permit and may result in a fine, suspension, or revocation.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue
the permit upon payment of the required fees and costs by the applicant.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January 9, 1995 |
