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. (Supp. 1993) for a hearing pursuant to the application of
Paul A. Scoggins for an on-premises beer and wine permit (AI 101393) and a club sale and
consumption license, hereinafter referred to as minibottle license, (AI 101394) for a nonprofit
organization located at 1310 Cedar Lane Road, Greenville County, South Carolina.
After timely notice to the parties and protestant(s), a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. Only one protestant of record
appeared, Reverend Betty Haynes. No protestant(s) moved to intervene as a party. The issues
considered at the hearing were: (1) the applicant's eligibility to hold a beer and wine permit and a
minibottle license; (2) the suitability of the proposed business location; and, (3) the nature of the
proposed business activity. The application for an on-premises beer and wine permit and the
application for a minibottle license are hereby granted, with conditions and restrictions.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following findings of fact by a preponderance of the evidence:
1. The applicant seeks an on-premises beer and wine permit and minibottle license for
a nonprofit organization located at 1310 Cedar Lane Road, Greenville County, South Carolina.
2. The South Carolina Department of Revenue and Taxation 's ("DOR") file,
excluding letters and petitions of declarants and signatures of persons not present and subject to
cross examination at the hearing, was made a part of the record by reference with the consent of
the petitioner and the protestant(s).
3. The applicant incorporated the private club, Palomino of Greenville, Inc., on
December 12, 1994, as a nonprofit organization duly organized and certified under the laws of
the State of South Carolina. The officers of the organization have adopted bylaws which limit
membership and the organization is not open to the general public.
4. The proposed location is situated approximately 500 feet away from Cedar Lane
Road, a four lane major thoroughfare, bordered by Orchid Drive to the left (facing the proposed
location).
5. The proposed location is situated in a "strip mall" with the Bull's Eye Tavern
directly adjacent to the proposed location on the right, a Bingo operation directly adjacent to the
proposed location on the left, and AMF Bowling directly adjacent to the left of the proposed
location (facing the proposed location). The Bull's Eye Tavern and AMF Bowling both hold beer
and wine permits. Located behind the proposed location is a residential community, which is
separated from the proposed location by a six (6) feet high wooden fence.
6. The proposed location is situated within a district zoned as a Highway Commercial
District ("C-2") by the Greenville County Council; the C-2 designation is established to provide
for the development on major thoroughfares of commercial land uses which are oriented to
customers traveling by automobile.
7. The proposed location is consistent with the uses permitted under the Greenville
County C-2 designation, which includes among several other businesses, ABC package stores,
concert halls, taverns, and night clubs. Further, the nature and intended use of the proposed
location conforms to that of the area, given its commercial nature. The residential community
behind the proposed location is in a different zone, Single Family Residential District ("R-10").
8. The proposed location is leased to the applicant by James P. Brockman.
9. The applicant intends to operate the proposed location as a private country and
western dance club, with hours of operation on Tuesday through Sunday from 7:00 p.m. to 2:00
a.m.
10. Representative Mike Fair, along with other local residents, Reverend Betty
Haynes, Mr. Bruce Carl Ink, Ms. Brenda Gail Goggans, and Mr. Jerry Clark testified in
opposition to the applications citing noise, parking, public safety, proximity of residences,
lowering property values, and oversaturation of businesses currently operating in the area which
sell beer, wine or alcoholic beverages as potential problems and as reasons for denial of the
applications.
11. No church, school, or playground is within 500 feet of the proposed location. The
nearest church is 610 feet away.
12. The applicant presently resides in Horry County, but intends to relocate his
residence to Greenville County to operate and manage the private club.
13. The applicant is of good moral character.
14. The applicant is at least 21 years of age, a U.S. citizen, a citizen of the State of
South Carolina, and has maintained his principal residence in the state for at least thirty (30) days
prior to the date of making application for an on-premises beer and wine permit and a minibottle
license.
15. Notice of both applications appeared in The Greenville News, a newspaper of
general circulation in the area of the proposed location, for three (3) consecutive weeks and
notice was posted at the proposed location for fifteen (15) 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) authorizes the South Carolina
Administrative Law Judge Division 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) establishes the criteria for the issuance
of a beer and wine permit.
3. S.C. Code Ann. §§ 61-5-20(3) and 61-5-50 (Supp. 1993) establish the criteria for
the issuance of a minibottle license to a nonprofit organization.
4. 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). Furthermore, it is logically consistent that zoning
be a factor considered in determining whether the element of suitability has been satisfied, as "the
primary object of zoning is to promote health, safety, welfare, and prosperity of [the] community,
and the ultimate purpose is to confine certain classes of buildings and uses to certain localities. . ."
101(A) C.J.S. 366 Zoning and Land Planning §101 (1979).
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 , 281
S.C. 566, 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 operations 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.2d 335 (1985); Schudel v. S.C. ABC Commission, 276 S.C. 138,
276 S.E.2d 308 (S.C. 1981).
7. The denial of a license or permit to an applicant on the grounds of unsuitability of
location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not supported by
facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
8. The potential noise, public safety problems, and the potential for lowering property
values suggested by protestants are speculative and are not a concrete basis for denial of the
applications. Further, no evidence was presented to show that the issuance of an on-premises
beer and wine permit and a minibottle license as requested by the applicant would have an adverse
impact on the community. Additionally, sufficient evidence was not offered to establish that an
"adequate" number of licenses have already been issued in Greenville County or the community
surrounding the proposed location.
9. The proposed location and business activity are suitable and proper because of the
commercial nature of the surrounding area and there is no evidence of any adverse impact on the
community.
10. The applicant satisfies the statutory requirements for the issuance of an on-premises beer and wine permit and a minibottle license.
11. The applicant satisfies all of the statutory requirements for holding an on-premises
beer and wine permit and minibottle license with various restrictions, limitations, and conditions
as set forth below, and accordingly, the proposed location is a proper one for granting an on-premises beer and wine permit and a minibottle license.
12. Permits and licenses issued by the State for the sale of liquor, beer, and wine are
not rights or property, but are 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).
13. 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to
permits, provides:
Any stipulations 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 permittee.
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.
STIPULATIONS
1. The applicant agrees to prevent patrons or members of the club from loitering
behind the proposed location.
2. The applicant agrees, as a condition to the issuance of an on-premises beer and
wine permit and a minibottle license, to erect a fence along the property line of the parking lot
beside AMF Bowling, running parallel with Orchid Drive, sufficient to prevent pedestrian
members and patrons of the proposed location from entering the parking lot directly from Orchid
Drive.
3. The applicant agrees, as a condition to the issuance of an on-premises beer and
wine permit and a minibottle license, to construct a sound barrier wall thirty (30) feet from the
exterior wall of the building with sufficient insulation to control sounds emanating from the
building; and further, the applicant agrees to hire a technician or other person qualified in
acoustics to measure the amount of sound that will emanate from the building, and thus, take
necessary measures to ensure that sounds emanating from any entertainment or other activities to
be held therein will be within the permissible limits of noise ordinances adopted by the Greenville
County Council.
4. The applicant agrees, as a condition to the issuance of an on-premises beer and
wine permit and a minibottle license, that he will not open for business before 7:00 p.m. on
Sundays.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Paul A. Scoggins for an on-premises beer and wine
permit at 1310 Cedar Lane Road , Greenville County, South Carolina, be granted upon the
applicant signing a written agreement to be filed with DOR to adhere to the stipulations
previously set forth above and the following restrictions:
1. The applicant shall provide adequate parking for members and patrons.
2. The applicant shall prohibit patrons from parking on the shoulder of the streets
surrounding the proposed location and strictly enforce the prohibition.
IT IS FURTHER ORDERED that a violation of any of the above stipulations or
restrictions is considered a violation against the permit and license and may result in a fine,
suspension, or revocation.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an
on-premises beer and wine permit and a club sale and consumption license upon the payment of
the required fee(s) and cost(s) by the applicant.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
March 27, 1995 |