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. (1986 and Supp. 1993)
for a hearing pursuant to the application of Oscar L. Rosemond, d/b/a Corner Inn Bar and Lounge
("applicant") for an on-premise beer and wine permit (AI 100778) and an on-premise sale and
consumption ("mini-bottle") license (AI 100779) for the premises located at 3 Ashmore Street,
Greenville, Greenville County, South Carolina ("location").
A hearing was held on June 7, 1995, at the offices of the Administrative Law Judge Division,
Columbia, South Carolina. The issues considered were: 1) the moral character of the applicant, and
2) the suitability of the proposed location.
The application was protested by the Green Line Community Association ("association"), an
organization composed of various residents of the Green Line Community in Greenville wherein the
proposed location is situate. The Association motioned to intervene as a party which motion was
granted. Initially, the South Carolina Department of Revenue and Taxation ("department"), as set
forth in its prehearing statement, opposed the issuance of the permit and license; however, by letter
dated June 2, 1995, it withdrew its opposition and did not send a representative to the hearing.
The application requests, with restrictions, are granted upon compliance with statutory
requirements as enumerated herein.
EXHIBITS
Without objection, those certified copies of documents forwarded to the Administrative Law
Judge Division file from the department were made a part of the record.
Also, applicant placed into the record without objection seven (7) exhibits as follows:
1) Affidavit of Paul Ellis, Administrator of Parks and Recreation of the City of
Greenville, and immediate supervisor of the applicant;
2) Affidavit of Charles Gardner, head of the Community Services Division of the City
of Greenville, with supervisory duties over Paul Ellis and the applicant;
3) Affidavit of Charley Day, Manager of Carquest Parts of Greenville, Inc.;
4) Petition signed by individuals from the Green Line and Spartanburg Street Community
who do not object to the opening of applicant's bar and lounge (several were present
at the hearing);
5) Eleven (11) photographs showing the location, parking area and the Carquest building
to its front and both Ashmore Street and Stone Avenue;
6) Eleven (11) photographs showing the location, several views of both Spartanburg
Street and Stone Avenue, parking areas to the side and rear of the location as well as
the residence of Ms. Cleve Ann Mack.
7) Aerial photograph showing the bar and lounge location and its relationship to the
recreational center, residences, churches, etc... in the Green Line/Spartanburg Street
area of Greenville.
The association introduced as a part of the record five (5) exhibits as follows:
1) Seven (7) photographs taken of the location, Ashmore Street and the parking area
behind the Carquest Auto Parts Store, and Mt. Emanuel Baptist Church;
2) Petition signed by "Concerned Citizens of the Green Line/Spartanburg Street
community requesting denial of the application requests of the applicant;
3) Affidavit of Harley Reeder;
4) Letter to file from Reverend David L. Helbanes, Pastor of Mt. Emanuel Baptist
Church, in opposition to the applicant's application requests.
5) Letter by Willie L. Johnson, Captain of Detectives, City of Greenville Police
Department, with attachments listing police calls in the Green Line community area
for the years 1993 and 1994.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the
credibility of the witnesses, by a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties
and the protestants.
3. The applicant is seeking an on-premise beer and wine permit and an on-premise sale
and consumption license for a bar and lounge located at 3 Ashmore Street, Greenville, South
Carolina.
4. The applicant is forty-eight (48) years of age and has lived in and maintained his
principal place of abode in Greenville, South Carolina, all his life.
5. The applicant has never had a beer or wine permit revoked.
6. 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 applicant
proposes to engage in business.
7. Notice of the application has been given by displaying a sign at the site of the proposed
location for a period of fifteen (15) days.
8. Applicant has been employed with the City of Greenville maintenance department for
twenty-six (26) years, and is presently a supervisor of the city parks with fifteen (15) employees under
his control. His wife, Yvonne T. Rosemond, is an employee of the South Carolina Department of
Revenue and Taxation in Greenville, South Carolina.
9. Applicant has a criminal record consisting of an assault and battery charge in 1980,
a fraudulent check charge in 1982 and a domestic abuse incident with his wife in 1991. He has no
convictions in the last thirteen (13) years and committed no crimes of moral turpitude.
10. Applicant's supervisors, Charles Gardner and Paul Ellis, through their affidavits, attest
to his character traits of honesty, integrity, dependability, leadership, to his supervisory skills; his
good reputation in the community as being law-abiding, of being a good family man and being
considerate of his neighbors.
11. I find the applicant is of good moral character.
12. Applicant's work day ends at 3:00 p.m. each day and his wife's work day ends at 5:30
p.m. daily.
13. Applicant rented the location in October, 1994, from Davis Enterprises, Inc., which
also owns the Carquest building and its parking area together with the land beside and behind the
location. He has entered into a verbal agreement with officers of the Carquest business and Davis
Enterprises, Inc., which will allow patrons of his bar/lounge to park in their parking lots and land.
14. Live music will not be allowed at the location, however, a juke box and pool tables
will be allowed.
15. Mt. Emanuel Baptist Church, the nearest church, is in excess of 1200 feet from the
location; a recreation center is in excess of 2100' and the closest residence is in excess of 300' from
the location. No schools or playgrounds are in close proximity.
16. The complaints of members of the Association and recreation center are that the
lounge will create excessive noise and fighting, disorderly conduct acts will occur and crime will be
enhanced from alcohol consumption. A mission of the Association is to improve the neighborhood,
make the environment and neighborhood thereat safe and reduce drunk driving. There was also
concern about additional traffic near the location which would create congestion on Spartanburg
Street.
17. A detective from the City of Greenville Police Department, who has worked the Green
Line area as a community patrol officer for thirteen (13) years, testified. After listening to his
testimony, I find the department did not appear at the hearing to protest the applicant's permit and
license requests.
18. The location appears to be an old residence. It has a front door and a rear door which
exits into a fenced area which is available for parking. There is a basement in it. It is located in a
primarily commercial area, just off Stone Avenue, which is a busy four-lane thoroughfare in
Greenville, South Carolina.
19. Applicant has applied to the City of Greenville for a business license to operate a
restaurant. He intends to operate the lounge/restaurant in off-hours, with assistance from his wife.
Closing time on weekdays will be 10:00 p.m. and on Saturday evening at 12:00 a.m.
20. No class A restaurant license has been issued to the applicant.
21. Applicant is not bona fide engaged primarily and substantially in the preparation and
serving of meals nor does he furnish lodging to the public on a regular basis.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in
this matter.
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) 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.
The applicant meets all the statutory requirements set forth above and has made an adequate
showing on each of the above stated grounds for issuance of the permit.
3. S.C. Code Ann. § 61-5-50 (Supp. 1994) sets forth the requirements for the issuance
of a sale and consumption ("mini-bottle") license which provides as follows:
The Department may grant a license upon finding:
(1) The applicant is a bona fide nonprofit organization or the applicant
conducts a business bona fide engaged primarily and substantially in
the preparation and serving of meals or furnishing of lodging, as
described in § 61-5-10.
(2) The applicant, if an individual, is of good moral character or, if a
corporation or association, has a reputation for peace and good order
in its community, and its principals are of good moral character.
(3) As to business establishments or locations established after November
7, 1962, § 61-3-440 has been complied with.
(4) 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, municipality, or community in which
the applicant proposes to engage in business. The department shall
determine which newspapers meet the requirements of this section
based on available circulation figures. However, if a newspaper is
published within the county and historically has been the newspaper
where the advertisements are published, the advertisements published
in that newspaper meet the requirements of this section. Applicants
for a beer and wine permit and alcoholic license may use the same
advertisement for both if it is approved by the department.
(5) Notice has been given by displaying a sign for fifteen days at the site
of the proposed business. The sign must:
(a) state the type of license sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the department.
(6) The applicant is twenty-one years of age or older.
(7) The applicant is a legal resident of the United States and has been a
resident of this State 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.
4. S.C. Code Ann. § 61-5-10 which defines "a business bona fide engaged primarily and
substantially in the preparation and serving of meals or furnishing of lodging" reads in part as follows:
As used in this article:
(1) "Bona fide engaged primarily and substantially in the preparation and serving of meals"
shall refer only to such a business which has been issued a Class A restaurant license prior to
issuance of license under this article and in addition provides facilities for seating not less than
forty persons simultaneously at tables for the service of meals.
(2) "Furnishing lodging" shall refer only to those businesses which rent accommodations for
lodging to the public on a regular basis consisting of not less than twenty rooms.
5. A license for the sale and consumption of alcoholic beverages must not be granted
unless the provisions of S.C. Code Ann. § 61-5-50 are met. In addition to many of the same
requirements contained in S.C. Code Ann. § 61-9-320, § 61-5-50 also requires that the mini-bottle
licensee be either a bona fide non-profit organization or conduct bona fide business engaged primarily
and substantially in food preparation and service or furnishing of lodging.
6. A permit may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1994) if the
applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a
sufficient number of licenses have already been issued in the state, municipality or community.
7. S.C. Code Ann. § 61-3-440 (Supp. 1994) 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. No churches,
schools or playgrounds are located within the prescribed proximity to render the proposed location
unsuitable.
8. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). 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). It is also the fact
finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance
and weight of any testimony and evidence offered.
9. Although "proper location" is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 305
S.C. 243, 281 S.E.2d 181 (1981). 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). Any evidence adverse to the location may be
considered. The proximity of a location to a church, school or residences is a proper ground by itself,
on which the location may be found to be unsuitable and a permit denied. Byers v. South Carolina
ABC Commission, 305 S.C. 243, 407 S.E. 2d 653 (1991). Further, the court can consider whether
"there have been law enforcement problems in the area." Palmer v. S.C. ABC Commission, S.C. 246,
317 S.E.2d 476 (Ct. App. 1984).
10. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition of a permit is opinions and conclusions
or supported by facts. Taylor v. Lewis, et al., 198 S.E. 2d 801 (1973). In this instance the testimony
of the association and its witnesses consisted only of opinions and a claimed detriment to the
community which is conjectural and without any factual support, the residential areas are far removed
from the location, there was no church, school or playground in close proximity and no evidence was
offered to prove any law enforcement problems in the community.
11. There has been no showing that the present location is unsuitable, is not a fit location,
or that it would increase stress in terms of the residents' safety, or create traffic problems.
12. S.C. Code Ann. § 61-9-340 (Supp. 1994) 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.
13. 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.
14. 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).
15. A violation of any regulation or code section of the Alcoholic Beverage Control Act
is punishable by revocation or suspension of the license pursuant to S.C. Code Ann. § 61-5-60 (Supp.
1994).
16. S.C. Ann. § 61-3-425 (Supp. 1994) prohibits the issuance of a license under Title 61
until the applicant presents to the department 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.
17. It is concluded that the applicant has met his burden of proof in showing that he meets
all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption
("mini-bottle") license in regards to its location and activity. However, it is further concluded that
the applicant has not established before this Court compliance with S.C. Code Ann. §§ 61-3-425 and
61-5-50(1) and therefore the issuance of the license is contingent upon the applicant satisfying those
requirements. It is further concluded that the proposed location is a proper one for granting the
permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Oscar L. Rosemond, d/b/a Corner Inn Bar and Lounge
for an on-premise beer and wine permit for the premises located at 3 Ashmore Street, Greenville,
Greenville County, South Carolina is granted with the following restrictions, 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. There will be no outside advertising of beer and wine at the location.
2. Applicant will ensure that no loitering or drinking occurs in the parking areas and
outside the location.
3. Applicant will make any rest room inside the location available for customers' usage.
4. Applicant will ensure that no loud noise emanates from the location, unless it comes
from vehicular traffic over which he has no control. If necessary, upon any complaint made to the
Department, a volume limitation decise will be installed on the juke box at the location to keep the
maximum volume to a level that the music can't be heard by residents on Spartanburg Street.
5. Applicant will close the lounge/restaurant not later than 10:00 p.m. on weeknights
(Monday through Friday) and not later than 12:00 a.m. on Saturday evening.
6. No live entertainment or bands are allowed at the location.
IT IS FURTHER ORDERED that a violation of any one of the above conditions 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 the
permit upon payment of the required fees and costs by the applicant.
IT IS FURTHER ORDERED that the on-premise sale and consumption ("mini-bottle")
license be granted upon applicant's compliance with the requirements of S.C. Code Ann. § 61-3-425
and S.C. Code Ann. § 61-5-50(1), and upon applicant's payment of the required fees and costs.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
June 22, 1995 |
