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 applications of James W. Jolly,
d/b/a Coyote Club, ("applicant") for an on-premise beer and wine permit (AI99204 ) and on-premise sale and consumption license (AI99205) at 629 Gossett Road, Spartanburg, South
Carolina ("location").
A hearing was held on February 6, 1995, at the Office of the Administrative Law
Judge Division, 1205 Pendleton Street, Columbia, 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 business location, and 2) the nature
of the proposed business activity.
On motion of the Spartanburg County Sheriff's Department ("Sheriff's Office),
without objection, the Sheriff's Office was made a party in this case. As outlined in its Pre-Hearing Statement, the South Carolina Department of Revenue and Taxation ("department")
was not represented at the hearing and did not object to the issuance of the permit and
license.
The applications requested by the petitioner are approved with stipulations.
EXHIBITS
Without objection, copies of the relevant portions of the department's file were made
a part of the record as were one group of photographs offered by the petitioner.
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 and on-premise
sale and consumption ("mini-bottle") license for a non-profit private night club entitled
"Coyote Club" located at 629 Gossett Road, Spartanburg, 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 Spartanburg Herald-Journal, 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 his principal place of abode in South Carolina for over thirty days.
7. The applicant is of good moral character.
8. The applicant intends to own, operate and manage the Coyote Club as a non-profit private club. Food will be served.
9. There are no schools, playgrounds or churches within close proximity to the
proposed location.
10. The club is located in a rural residential area.
11. The location has been licensed for approximately the past seven years and the
applicant has been operating it under a temporary beer and wine permit since on or about
November 23, 1994.
12.Sergeant John Lyles of the Spartanburg County Sheriff's Department testified
about its concern if one George D. Thompson were going to be involved in the business.
However, the applicant testified he was the sole owner and Mr. Thompson had no interest
therein. Whereupon the Sheriff's Office withdrew its objection to the permit and license
issuance.
13. The petitioner agreed to the following stipulations:
1. George D. Thompson will have no financial interest in the business, nor
will he be employed by the business
2. The business would be open no later than 2:00 a.m. in the evenings.
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. § 61-9-320 (Supp. 1993) and S.C.Code Ann. § 61-3-440 et
seq. (Supp. 1993) set forth the requirements for the issuance of on-premise beer and wine
permits and sale and consumption licenses.
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.
5. There has been no showing that the present location is unsuitable, is not a fit
location, that it would increase stress in terms of the resident's safety, or create traffic
problems.
6. S.C. Code Ann. § 61-9-340 (Supp. 1993) states that upon a determination that
an applicant meets the criteria set forth and has not misstated or concealed a fact in the
application, the S.C. Department of Revenue and Taxation must issue the permit after
payment of the prescribed fee.
7. S.C. Code Ann. § 61-3-425 (Supp. 1993) requires an applicant seeking a
license to present to the Department of Revenue and Taxation a signed statement both from
the Department and the Internal Revenue Service showing the applicant doesn't owe the state
or federal government delinquent taxes, penalties or interest.
8. No churches, schools or playgrounds are within the prescribed proximity to
render the proposed location unsuitable.
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 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).
11. Although "proper location" is not statutorily defined, rather broad discretion
is vested in the Division in determining the fitness of suitability of a particular location. Fast
Stops, Inc. v. Ingram, 276 S. C. 593, 281 S.E. 2d 181 (1981). A license should not be denied
to a qualified applicant on the basis of the unfitness of former licensees on the premises for
which the license is sought. 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. SC
ABC Commission 316 S.E. 2d 705 (S.C. App. 1984)
12. Given the history of this location holding a beer and wine permit and a sale and
consumption license and after considering the testimony of the applicant and Sergeant Lyles
it is concluded that the application of the petitioner should be approved with the stipulations
cited herein.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby ordered:
1. The application of James W. Jolly for an on-premise beer and wine permit and an on-premise sale and consumption license at 629 Gossett Road,
Spartanburg, South Carolina is approved with the following stipulations:
1. George D. Thompson will have no financial or ownership interest in nor be employed by the applicant and/or the Coyote Club.
2. The club will be open no later than 2:00 a.m. in the evenings.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
February 9, 1995 |