ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§ 1-23-310 et. seq. (1986 and Supp. 1993) for a hearing on the application of Mary Hughes
("applicant") for a permit to sell beer and wine on-premises at an establishment located at 1707 Easley
Bridge Road, Greenville, South Carolina, called Diamond's ("location" or "Diamond's").
A hearing was held on November 30, 1994, at the Greenville County Courthouse, Greenville,
South Carolina. Notice of the time, date, place and nature of the hearing was given to the parties and
protestants. The permit application was protested by Tabernacle Baptist Church, Welcome Baptist
Church, Washington Avenue Church of God, Washington Avenue Baptist Church, all members of
the Greenville County Council and all members of the Greenville County Legislative Delegation as
to the suitability of the location and nature of the proposed business activity. Tabernacle Baptist
Church and Washington Avenue Church of God petitioned to intervene and were orally added as
parties in interest at the hearing. The Respondent, The South Carolina Department of Revenue and
Taxation ("Department"), has investigated the application and has made no recommendation.
After hearing all witnesses presented by the parties/protestants, examining the evidence and
exhibits submitted, and personally viewing the sought location, I find that the proposed location is
unsuitable for a permit for on-premise consumption of beer and wine and deny the application
request.
STIPULATIONS
Applicant and Tabernacle Baptist Church stipulated to the Presiding Judge examining the
premises either by himself or in the presence of both counsel. Additionally, the parties stipulated to
signed petitions, both for and against the permit issuance. Most of the documents contained in the
Department's file were stipulated to, also.
EVIDENCE OF THE CASE
Applicant presented testimony of several persons who either reside or have businesses near
the proposed location. Nolan Gilbert testified he recently purchased the residence closest to the
proposed location and has no objection to Diamond's obtaining an alcohol permit. He testified he had
no problems with patrons of Diamond's and management appeared to run it in an orderly manner.
Jimmy Mantekas, owner of The Clock restaurant and the premises in which Diamond's is located,
testified he saw no reason Diamond's should not have a permit. The Clock restaurant is located next
to Diamond's, separated by a street. Mr. Mantekas testified the area was primarily commercial.
Applicant testified she is fifty-two (52) years old, has no criminal record, grew up in
Greenville County, has extended family there, worked at Fluor Daniel for eleven (11) years and has
assisted her husband in managing a construction company for the last ten (10) years. She testified
she spends a great deal of time at Diamond's and has taken steps to insure the club is safe for patrons
and residents in the community. She testified that prior to opening Diamond's, the location was
deserted with an unlighted parking lot and vagrants apparently lived at the rear, as evidenced by
clothes, beer and wine bottles and other discarded items found there. Ms. Hughes testified she and
her husband remodeled the club, set up outside lighting for safety reasons and significantly improved
the premises.
Applicant also presented testimony of Lee Stanley Smith, who testified he assists the club with
its bookkeeping, business strategies and marketing. Mr. Smith testified that he is present at the
establishment on a regular basis and assisted applicant in setting up the business. He testified the
proposed location is bounded by a Laundromat and ceramics store on one side, The Clock restaurant
on the other, and is faced across the street with an Amoco station where beer and wine is sold. Poor
Richard's, Texaco and Ambers are other businesses located in the immediate area (on the same street
within immediate distance) and each establishment sells beer and wine. A pawn shop is located
across the street. The road in front of Diamond's is heavily traveled and the area is commercial in
nature. Mr Smith testified to the massive clean-up efforts which applicant made to ensure the
proposed location is safe for its patrons and for the residents of the community. He also testified as
to the extensive security staff Diamond's maintains, the lack of residences close to Diamond's and
referred to an exhibit prepared by applicant which depicts the area, nearby establishments, location
of residences and churches. He placed the nearest church at approximately 550 feet "as the crow
flies." The Welcome Baptist Church, which opened after Diamond's, is located in a strip mall next
door to Poor Richard's, a location which sells alcohol. Mr. Smith testified that prior to Diamond's
opening, its building was dilapidated.
William McCue, an employee of Diamond's since its opening, testified that its hours of
operation are from 6:00 p.m. until 2:00 a.m. Monday through Friday; that it opens on Saturday at
6:00 p.m. and closes Sunday morning at 3:00 a.m. He testified that the applicant is present at the club
a lot and he discusses management concerns with her. He said the club has thirty-five (35) dancers
who dance topless. Further, he testified that since no alcoholic permit or license has been issued to
Diamond's by the Department, it is not limited by the Department's regulations and, if no permit is
granted, the dancers at Diamond's may dance totally nude. He stated that customers go to the
parking lot and chit-chat, and the parking lot is policed by its seven (7) security guards. He further
stated that Diamond's has free draft beer from 6:00 p.m. to 7:00 p.m. and after 7:00 p.m. customers
bring their beer and wine inside, the club furnishing free buckets of ice.
Applicant also presented the testimony of Casey and Crystal Byers. Mr. Byers works security
for Diamond's and testified that applicant called in law enforcement officials to train the staff and all
new personnel are shown a film of this training seminar. He also stated that all employees working
security have prior experience in either law enforcement, military law enforcement or security
employment. He also testified that security personnel prevent loitering and safeguard the exterior by
walking around the buildings. He said the entire area around Diamond's is patrolled and kept clean
from vagrants by its staff. He also testified that since Diamond's has been open, allowing patrons to
bring inside and consume alcoholic beverages, no events have occurred requiring police assistance
or intervention. His wife, Crystal, who is twenty-one (21) years of age and a dancer at Diamond's,
testified to the atmosphere inside being "classy," the absence of any altercations or incidents at
Diamond's, rules applicable to employees and patrons ("no touching, only talking"), and the orderly
atmosphere in which Diamond's is operated. She had previously entertained at the Gold Nugget Club
in Spartanburg, South Carolina.
Eddie Michael Cannon, owner of a video poker company, testified he invested $75,000 in
Diamond's, primarily through the placement of video poker machines therein, the profits from which
he and applicant share equally. He hopes to purchase stock in Diamond's if it is incorporated. He
admitted on cross-examination of having served a one year probationary sentence for housebreaking
and larceny and to writing fraudulent checks. He stated he grew up in the area where Diamond's is
located but that the general area is in a decline now. He said that the situation three blocks away is
"scary," that one to two miles away there are crack houses and bookie joints, and that he wouldn't
drive through that area at night. He does not live in the area where Diamond's is located.
Tabernacle Baptist Church presented testimony of Jim Murphee, a resident all his life in the
community , who owns and operates an automobile garage behind Diamond's. Mr. Murphee is a
member of the Tabernacle Baptist Church and testified he objects to any person consuming alcohol
at any time. He stated that littering of beer cans and liquor bottles as well as trespassing by patrons
of Diamond's was occurring on his premises and generally blamed the Diamond's for these concerns.
He testified he had never related to the applicant or any of her agents his concerns. Mr. Murphee
testified he did not believe the site was "suitable" for alcohol sales and was concerned about the
safety of children under twelve years of age walking through Diamond's parking lot to The Clock
restaurant.
Tabernacle Baptist Church then presented testimony from James H. Sorenson, a machinist
from Easley who, at the request of an attorney for Tabernacle Baptist Church, entered Diamond's the
Friday and Saturday evenings prior to the hearing. He was not paid any remuneration for this act.
Mr. Sorenson testified that Diamond's appeared well-run and orderly, he did not witness any
disturbances while there and the events at Diamond's seemed to operate on a routine. Further, he
stated that the dancers entertained topless, usually one girl on stage at a time for a two song duration,
while other dancers would, for a ten dollar ($10.00) fee, dance on a table and/or in a patrons lap,
brushing her breasts against the patron's face. He also said there was a "sofa dance" where a dancer,
for twenty dollars ($20.00), would lead the patron to a sofa, undress to a G-string, dance for and on
this person.
Tabernacle Baptist Church presented two of its ministers as witnesses, Reverend Steve C.
Crout and Dr. Douglas A. Cannaday. Rev. Crout testified he and Tabernacle Baptist Church are
opposed to topless dancing and alcohol consumption of any kind. Dr. Cannaday testified that
Tabernacle Baptist Church has over 3500 members with 400 students in its elementary and secondary
schools and 100 in its Bible College, all classes meeting Monday through Friday. He stated
Tabernacle Baptist Church also operates a day care facility that closes at 6:00 p.m. each day. He
testified that the front door of Tabernacle Baptist Church is 1/2 mile from Diamond's. Tabernacle
Baptist Church has concerns about the effect alcohol consumption will have on patrons who go to
Diamond's and the danger it poses to children and elderly people who live in the neighborhood while
walking, at their homes or nearby churches or while driving. He stated he is personally opposed to
alcohol.
Reverend Grady Barrett, pastor of Washington Avenue Church of God also testified,
protesting the issuance of the permit, incorporating the concerns of Dr. Cannaday as his concerns.
Also, he testified about general problems his church had with crime in the community. His primary
concern is the after effect of drinking.
Greenville Deputy Wort Kotter testified that he is assigned to the area where Diamond's is
located, known generally as the west side of Greenville, and is familiar with the growing crime
problem in that area of the county. He also testified that the west side and, in particular that part
where Diamond's is located, are inadequately staffed by law enforcement. This patrol area contains
thirty-four (34) square miles and, while it contains only 15% of the county's total population, it
accounts for more than 25% of all reported crime and 37% of all DUI's registered in the county.
Deputy Kotter also testified that the operation of an adult entertainment club almost always brought
with it additional law enforcement problems, which the under-staffed sheriff's office could not be
expected to control or manage.
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 Diamond's, an adult
entertainment club, located at 1707 Easley Bridge Road, Greenville, Greenville County, South
Carolina.
3. The applicant is over twenty-one (21) years of age and has not had an application
revoked within the two (2) years preceding the date of the filing of this application.
4. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Greenville News, a newspaper of general circulation in the local area where the
applicant proposes to engage in business.
5. 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.
6. The applicant has been a legal resident of South Carolina for over thirty days and
maintained her principal place of abode in South Carolina for over thirty days.
7. The applicant is of good moral character, has no criminal record and has resided in
Greenville County for the majority of her life.
8. The applicant intends to own, operate and manage Diamond's. For the past few
months, Diamond's has been operational by allowing patrons to bring their own beer or wine with the
club supplying ice, containers and soft drinks. It proposes to operate between the hours of 6:00 p.m.
to 2:00 a.m. Monday through Friday, and 11:00 a.m. to 12:00 a.m. on Saturdays.
9. Diamond's is located in a rather large building which was formerly used as a grocery
store of some sort and subsequently as a bingo parlor. It is surrounded by commercial establishments
on the highway but there is a residential community with churches and a playground in the area
behind it. One church is approximately five hundred feet (500') away. There are several other
bars/clubs nearby.
10. The proposed location is not within any municipal boundaries.
11. The area in which Diamond's is located is generally a high-crime area producing a
higher percentage of crime than the proportion of the citizens located in the area. The Greenville
County Sheriff's Department is inadequately staffed to handle the crime at its present level.
12. The applicant is associated with one Mike Cannon. While he is not technically a co-applicant or partner with the applicant, it is clear from his testimony that he has a financial interest
in Diamond's, he helped supply the financing to begin the applicant's business and anticipates having
a financial interest in Diamond's.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 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. § 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 a beer and wine permit which provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1. The applicant, any partner or co-shareholder of the applicant, 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 resident of the United States and has been a legal resident of this Sate for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.
3. The wholesale applicant is a legal resident of the United States and has been a legal
resident of the United States and has been a legal resident of this State for at least thirty days
before the date of application or has been licensed previously under the laws of this State.
4. The applicant, within two years before the date of application, has not had revoked a beer
or a wine permit issued to him.
5. The applicant is twenty-one years of age or older.
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.
7. 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.
8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.
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 outside a
municipality, is within five-hundred feet (500') of a church, school or playground; however, locations
for which beer and wine permits are requested are not subject to these restrictions.
5. Both sides presented signed petitions. Little weight was given to them in that the
individuals whose signatures were thereon were unavailable to offer testimony to their reasons for
their protests or support for the permit and were not available for cross examination. The decision
made today is based solely on the testimony provided to the Court, the documents in the Department
file which were stipulated to, the evidence presented (excluding petitions) and the actual physical
viewing of the site.
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). 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). 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 South Carolina Appellate Courts have given substantial guidance as to when it
is appropriate to deny a permit based on the factors considered in the present case. See Moore v. S.C.
Alcoholic Beverage Control Commission, ______ S.C. ____, 417 S.E. 2d 555 (1992)(School and
church located within one-half mile of proposed location); Byers v. S.C. Alcoholic Beverage Control
Commission, 305 S.C. 243, 407 S.E. 2d 653 (1991) (Both residences and a church were located
within one mile of the applicant's store); Roche v. S.C. Alcoholic Beverage Control Commission, 263
S.C. 451, 211 S.E. 2d 243 (1975) (Noting that the neighborhood was "predominately residential in
nature", that a church was approximately "100 feet from applicant's store," and "law enforcement
officers in the area had constant problems with public intoxication."); Kearney v. Allen, 287 S.C. 324,
338 S.E. 2d 335 (1985) (Where the court considered the "residential character of a surrounding area"
and that the site was within .2 miles of a local high school."); Palmer v. S.C. Alcoholic Beverage
Control Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (Noting that "this location is
situated in a rural residential area, in close proximity to other residences" and that "there have been
law enforcement problems in the area."); and Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d
181 (1981) (Noting that the location was "directly across from an elementary school and playground
area" and that granting the permit "would aggravate the drinking - related problems in the public
area.").
8. Although the Supreme Court noted in Taylor v. Lewis, 198 S.E.2d 801 (SC 1973),
that opinions of citizens alone would not justify a permit denial, the instant facts can easily be
distinguished because, in addition to citizen concerns, there is a proximity to schools, churches, and
playgrounds, and also documented concerns about inadequate law enforcement man-power by the
Sheriff's Office.
9. 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).
10. It is concluded that the location is not a proper one for the issuance of an on-premises
beer and wine permit for a variety of reasons, including its close proximity to schools, churches,
playgrounds and a residential area together with legitimate concerns by the Greenville County
Sheriff's Office about inadequate manpower to police the area where the business is located and
increased stress in terms of nearby residents' and pedestrians' safety
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Mary Hughes for an on-premises beer and wine permit
at 1707 Easley Bridge Road, Greenville, Greenville County, South Carolina be denied.
AND IT IS SO ORDERED.
________________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
March 1, 1995 |