South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Paul A. Scoggins, d/b/a Palomino vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Paul A. Scoggins, d/b/a Palomino

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-0036-CC

APPEARANCES:
James H. Harrison, Esquire

Attorney for the Petitioner

S.C. Department of Revenue and Taxation

Respondent (not present at hearing)

Charles M. Groves, Esquire and

C. Kenneth Powell, Esquire

Attorneys for the Protestant(s)

Reverend Betty Haynes (Protestant)
 

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


Brown Bldg.

 

 

 

 

 

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