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 applications of
Teresa T. Rose for an on-premises beer and wine permit (AI 101490) and a sale and consumption
license (AI 101491), hereinafter referred to as "minibottle license," for a restaurant located at
1233 N. Limestone Street, within the city of Gaffney, county of Cherokee, State of 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. Two protestants of record
appeared, Chief Jimmy N. Scates and Douglas E. Lipsey. Chief Jimmy N. Scates moved to
intervene as a party before the hearing and the motion was granted without objection by previous
Order of the Division dated March 6, 1995. 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 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 a minibottle license
for a restaurant located within the city of Gaffney at 1233 N. Limestone Street.
2. The South Carolina Department of Revenue and Taxation 's ("DOR") file,
excluding letters of declarants 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 proposed location is situated on N. Limestone Street, a two lane highway and
main thoroughfare in the city of Gaffney.
4. The area surrounding the proposed location is predominantly residential in nature
with the following commercial properties in the vicinity: Porter's Electric, Fast N' Fresh, Ingles,
Fatz, a styling salon, and a photography studio.
5. Fast N' Fresh and Ingles are located in the immediate vicinity of the proposed
location and are licensed to sell beer and wine.
6. A Class A restaurant license has been issued to the applicant.
7. The applicant is currently operating the proposed location as a restaurant which
serves breakfast, lunch, and dinner, with hours of operation on Monday through Saturday from
6:00 a.m. to 9:00 p.m. Menus are available and the business is currently engaged primarily and
substantially in the preparation and service of meals. The restaurant also has a game room in the
rear of the building with various gaming tables, such as pool tables.
8. The proposed location has seating capacity for at least forty (40) people
simultaneously at tables for the service of meals.
9. The nature and intended use of the proposed location conforms to that of the area.
10. The Gaffney Police Department received complaints from residents of excessive
noise at the proposed location during a private New Year's Eve party in December, 1994. This
occurrence was prior to the issuance of a business license to Brandi's Restaurant. In the two
months Brandi's Restaurant has been open for business, the Gaffney Police Department has not
received any complaints.
11. The proposed location is leased to the applicant by Dennis M. Rose, the applicant's
spouse.
12. Lieutenant Richard Turner of the Gaffney Police Department, along with local
residents, Edward S. Burgess and Douglas E. Lipsey, testified in opposition to the applications
citing the character of the applicant's spouse, who was convicted of resisting arrest and noise
violations in 1994, as justification for the denial of the applications. The protestant(s) also cited
potential problems with noise, public safety concerns, and the proximity of residences as reasons
for denial of the applications.
13. The applicant testified that her spouse would not be involved in the management
or day-to-day operations of the business.
14. No concrete 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 if the nature of the business activity, currently conducted
therein, was maintained.
15. No church, school, or playground is within close proximity to the proposed
location.
16. The applicant is of good moral character.
17. The applicant intends to operate and manage the restaurant.
18. The applicant testified that she would continue to operate Brandi's Restaurant at
the proposed location regardless of whether a beer and wine permit and minibottle license were
issued.
19. The applicant is at least 21 years of age, a U.S. citizen, a citizen of the State of
South Carolina, and has maintained her 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.
20. The applicant has never held a beer and wine permit or other license for the sale
or consumption of alcoholic beverages.
21. Notice of both applications appeared in The Gaffney Ledger, 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. § 61-5-50 (Supp. 1993) establishes the criteria for the issuance of
a minibottle license to a restaurant.
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).
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 (Ct. App. 1984).
6. There has been no evidentiary showing that the present location is unsuitable or
that the issuance of an on-premises beer and wine permit and a minibottle license would affect the
residents' safety, create traffic problems, or have an adverse impact on the community. The
proposed location and the nature of the business activity are suitable and proper given the
commercial/residential nature of the surrounding area.
7. The denial of a license or permit to an applicant on the ground 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 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 (1981).
9. The existence of the other businesses located in the vicinity of the proposed
location does not currently disrupt the harmonious or compatible coexistence of businesses and
residences. This is attributable to the nature of the activities conducted by the businesses and the
hours of the day these activities are conducted.
10. "A liquor license or permit may properly be refused on the ground that the
location of the establishment would adversely affect the public interest, that the nature of the
neighborhood and of the premises is such that the establishment would be detrimental to the
welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be
conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121
(1981).
11. While Brandi's Restaurant is situated in an area that is primarily residential, it is,
nonetheless, currently operating as a restaurant, and without sufficient evidence of an adverse
impact on the community, the applications must not be denied if the statutory criteria are satisfied.
The fact that residents protest the issuance of the permit and license is not a sufficient reason of
itself to deny the applications. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48
C.J.S. Intoxicating Liquors § 119 (1981).
12. If the present manner of conducting the business is maintained, which is currently
compatible with the surrounding community, the issuance of an on-premises beer and wine permit
and a minibottle license would not be detrimental to the general welfare of the community.
13. The applicant satisfies all of the statutory requirements for holding an on-premises
beer and wine permit and a minibottle license; and with the restrictions set forth below, the
proposed location is proper for the issuance of an on-premises beer and wine permit and a
minibottle license.
14. 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).
15. 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 permits and 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.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Teresa T. Rose for an on-premises beer and wine
permit and a minibottle license for a location at 1233 N. Limestone Street, Gaffney, South
Carolina, be granted upon the applicant signing a written agreement to be filed with DOR to
adhere to the following restrictions:
1. The applicant shall not allow excessive noise to emanate from the proposed
location. For purposes of this restriction, three (3) or more convictions for the violation of the
county noise ordinance shall be considered prima facie evidence of a violation of this provision.
2. The applicant shall provide adequate parking for patrons.
3. The applicant shall prohibit patrons from parking on the shoulder of the street
surrounding the proposed location and strictly enforce the prohibition.
4. The applicant shall prevent patrons of the restaurant from loitering outside.
5. The applicant's current hours of operation, 6:00 a.m. to 9:00 p.m., shall not be
extended beyond 10:00 p.m. That is, the applicant shall not open for business beyond 10:00 p.m.
IT IS FURTHER ORDERED that a violation of any of the above 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 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 29, 1995 |
