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 club sale and consumption minibottle license for 7303 Firelane
Road, Columbia, South Carolina. A hearing was held on October 11, 1994. Upon motion and
without objection, Protestant Lola Rabon was admitted as an intervening party to the action. The
issues considered were: (1) the applicant's eligibility to hold a license/permit; (2) the suitability of
the proposed business location; and (3) the nature of the proposed business activity. The
applications for a beer and wine permit and minibottle license are hereby granted, with
restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an on-premises beer and wine permit and club sale and consumption
minibottle license for a location at 7303 Firelane Road, Columbia, South Carolina, having filed
applications with the South Carolina Department of Revenue and Taxation (hereinafter referred
to as "DOR"), AI #99008 and AI #99009, on June 6, 1994.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) The DOR file was made a part of this record by reference.
(4) Applicant plans to operate the business as a non-profit corporation and private club
with a portion of the business dedicated to the preparation and service of meals.
(5) Applicant presently holds two (2) other alcoholic beverages licenses for nightclubs he
owns in the Columbia area.
(6) Applicant has incorporated as a non-profit corporation, having been granted a
certificate of incorporation as Dazzler's, Inc. on August 23, 1994, and adopting bylaws
August 15, 1994.
(7) The proposed location is in an unincorporated section of suburban Richland County,
in the northeast section of the county, on a frontage road adjacent to Interstate 20, near the Two
Notch Road exit.
(8) The proposed location and adjacent neighborhood are bordered by Interstate 20, a
wooded lot, a low, wet, unimproved tract of land, and a commercial corridor along Two Notch
Road, O'Neil Court, and Parklane Road.
(9) No churches, schools, or playgrounds are within 500 feet of the proposed location.
(10) Intervenor Lola Rabon, a local resident, testified in protest to the applications, citing
traffic and noise problems, the proximity of residences, past problems with parking, noise, and
litter at the location, and the unsuitability of the proposed business activity and location as reasons
for denial of the applications.
(11) The Richland County Sheriff's Department Headquarters is located approximately
three miles from the proposed location, with response time estimated by Chief Deputy Fred
Riddle at ten to fifteen (10-15) minutes.
(12) The proposed location has been previously operated as a night club and/or restaurant
by past owners and has been licensed to sell alcoholic beverages.
(13) While the proposed location was operated as "Fatties," Intervenor Rabon called the
Richland County Sheriff's Department numerous times to complain about noise from the location.
(14) The primary means of vehicular access to the proposed location is via Firelane Road
from Two Notch Road.
(15) The neighborhood adjacent to the proposed location, being composed of Moonglo
Circle and Voss Avenue, has been used in the past as a thoroughfare for exiting patrons of the
proposed location to reach Parklane Road.
(16) The proposed location is zoned for commercial use by Richland County.
(17) Applicant intends to contract with a bonded security company to have a security
guard on duty during operating hours to patrol the parking lot of the proposed location.
(18) Applicant intends to prohibit patrons from parking on the shoulder of Firelane Road.
(19) Applicant intends to have employees pick up litter and debris from the grounds of
the club each night as part of standard closing procedures.
(20) Applicant intends to utilize a home stereo unit, having approximately two hundred
(200) watts of power, as the sole source of recorded music at the proposed location.
(21) 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.
(22) Applicant has not had a permit/license revoked in the last five years.
(23) Applicant is of good moral character.
(24) 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.
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 criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1993) set forth the requirements for
a minibottle license.
(4) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1993).
(5) 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).
(6) 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).
(7) The proposed location is suitable and proper, based upon the commercial nature of
the area, if proper safeguards are imposed to protect the nearby residential neighborhood from
unwarranted noise, traffic hazards, and litter.
(8) Applicant meets the statutory requirements for issuance of a beer and wine permit and
minibottle license.
(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, 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).
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit and club
sale and consumption license applications of Wilmot P. Sligh, be granted, 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) Applicant must hire professional security personnel to be present on the business
premises and patrol the club parking lot during all hours in which the club is open for business and
after business hours until all patrons have left the premises.
(2) Loitering in the parking lot is prohibited. Persons sitting in parked vehicles or
standing in the parking lot must be ordered to immediately either leave the premises or enter the
club.
(3) After closing each night of operation, security personnel must supervise the orderly
departure of patrons from the parking lot.
(4) Possession or consumption of beer, wine, or liquor outside of the club building is
prohibited.
(5) Applicant shall construct and erect a sign, visible from the exit of the parking lot, to
instruct exiting patrons to leave the premises via Firelane Road to Two Notch Road.
(6) Applicant shall provide adequate parking for patrons.
(7) Applicant shall prohibit patrons from parking on the shoulder of Firelane Road and
strictly enforce the prohibition.
(8) Applicant shall have club employees pick up litter from the grounds of the club each
day/night of operation.
(9) Applicant shall not allow excessive noise to emanate from the proposed location. For
purposes of this restriction, two (2) or more convictions for violation of the county noise
ordinance, Chapter 18, Section 18-3, Richland County Code of Ordinances (as amended), shall
be considered prima facie evidence of a violation of this provision.
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
October 13, 1994
Columbia, South Carolina |
