ORDERS:
ORDER AND DECISION
This matter comes before me on the application of Gerald R. Brooks and Hooters of
Greenville, Inc. for an on-premises beer and wine permit. The application was protested by the
Department of Revenue and Taxation and Reverend Allen Edmisten, pastor of Laurel Street Baptist
Church. Reverend Edmisten requested to be made a party without objection. After notice to the
parties, a hearing was conducted on March 28, 1995. At that time, the Department and Reverend
Edmisten moved to dismiss the application on the basis that the applicant listed in the newspaper
advertisement was not Gerald Brooks and therefore the public did not have adequate notice regarding
the applicant.
The motion was denied on the basis that the parties failed to raise it in a timely manner waiting
until the date of the hearing; that the Department in the past has allowed the applicant to cure any
defect in the notice and republish it; and on the basis that judicial economy required the hearing to
go forward because the notice did provide the correct address of the proposed location and a number
of people objecting to the location appeared at the hearing. Numerous members from the public
provided protests with respect to the location. Any defect with respect to the applicant could be
cured by allowing the applicant to re-advertise properly showing the correct applicant and allowing
the public an opportunity to provide any comments with respect to the character of the applicant.
Therefore it was ordered that the applicant publish notice showing the correct applicant and allowing
the public to make comments on the suitability of the applicant to hold an on-premises beer and wine
permit. The record was held open for that limited purpose only.
A post trial hearing was held on May 15, 1995 for the limited purpose of accepting evidence
relating to the character of the applicant and his suitability to hold a beer and wine permit. At the
hearing, the affidavit of publication showing the proper applicant and requesting comments from the
public was accepted. No comments were received from the public relating to the character of the
applicant and the record was closed.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their cases by a preponderance of the evidence and taking into account the credibility of the
witnesses:
1. Gerald R. Brooks is over the age of twenty-one and is a resident of South Carolina.
He is also a legal resident of the United States.
2. He has never been convicted of a crime and is a person of good moral character. He
currently holds three beer and wine permits for other Hooters locations in South Carolina. None of
these permits have been suspended or revoked.
3. Notice of the application was posted at the location and was advertised in The
Greenville News for the time period required.
4. Hooters is part of a chain of restaurants operating under Hooters of America, Inc.
since the 1980's when founded by Robert Brooks, a former South Carolina resident and brother of
the applicant. The beer and wine application is for a restaurant located at 2401 Laurens Road in
Greenville. The restaurant is currently open for business selling seafood, sandwiches, chicken wings
and other items. Its hours of operation are Monday through Thursday, 11:00 a.m. to 12 midnight;
Friday and Saturday 11:00 a.m. to 1:00 a.m.; and Sunday 12 noon to 11:00 p.m.
5. The restaurants are either franchises or co-owned facilities. Hooters of America sets
a standard that approximately sixty-five percent of the restaurant's revenue must be derived from
food; thirty percent from the sale of beer and wine; and five percent from merchandise. Each
restaurant is monitored to assure that it meets this standard.
6. Hooters of America provides alcohol awareness and training for all employees.
Conducted by certified trainers, the program focuses on the recognizing how and when to intervene
to prevent service to persons who may be intoxicated and identifying the proper persons for service.
Training is provided through manuals and other information developed by the restaurant industry
relating to the service of alcoholic beverages. All employees are required to be certified in responsible
alcohol service to ensure that the sale of beer and wine to patrons is conducted in an appropriate
manner.
7. The proposed location is at the intersection of Laurens Road, Haywood Road, and
Old Woodruff Road, a heavily travelled commercial area. At the time of the hearing, Laurens Road
was under construction to widen the road to seven lanes and to create turn lanes from Laurens Road
to Haywood Road. In 1993, the traffic count revealed that an average of approximately 26,000
vehicles past the property at issue on a daily basis. This count was determined by measuring the daily
traffic flow at designated points four times in a year, not on a weekend, and averaging the number
of vehicles crossing that point.
8. There is residential housing in the area bordering on the commercial areas. There are
no schools in the vicinity. Gower Park is located 505 feet from the front door of the location.
Discovery Zone, an indoor play facility, is located in a mall to the rear of Hooters through its parking
lot and the mall parking lot, 785 feet away. From the front door of Hooters to the nearest entrance
of Laurel Street Baptist Church, which is across the street from Hooters, is 363 feet. The church is
located on the same side of the street as Hooters on the other corner of the three street intersection.
The parking lot of the church is located farther away from Hooters. The measurements were made
by a measuring wheel using the shortest distance of pedestrian travel, crosswalks and pedestrian
signals were not always used.
9. The sale and consumption of any beverage with an alcoholic content is abhorrent to
the teaching of the Baptist faith at this church. The sale of beer and wine at Hooters directly across
from the church is an affront to the teachings of the church. There are activities at the church daily.
10. There are many other locations within a few blocks of the church that sell beer, wine
and alcoholic beverages. The church does not object to some of these because they are not in direct
view of the church. From the church parking lot Hooters is visible but the building is constructed so
that there are no windows facing the church or its parking lot.
11. Over a fifteen month period from January 1994 to March 1995, there were 165
accidents reported in the vicinity of the intersection of Laurens Road and Haywood Road. The exact
location of the accidents could not be pinpointed. There are concerns that the sale of beer and wine
at this location will cause additional traffic problems at this intersection. There is no evidence to
establish that any of these accidents were related to the consumption of beer, wine or alcoholic
beverages.
12. Hooters obtained the permits required by the City of Greenville in order to construct
and operate the restaurant.
13. The Department of Revenue and Taxation is protesting the application on the same
basis as Reverend Edmisten, i.e. proximity to the church, the park, and traffic.
CONCLUSIONS OF LAW AND DISCUSSION
1. The Administrative Law Judge Division is vested with the powers, duties, and
responsibilities exercise by the former Alcoholic Beverage Control Commission and hearing officers
pursuant to Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1994)
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the statutory requirement for the
issuance of beer and wine permits. It states:
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 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 applicant.
(3) The wholesale applicant is 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 and has maintained this principal place of abode in South
Carolina 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 applicant, 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. This item does
not apply to locations licensed before its effective date.
(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. 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 or wine permit and an alcoholic liquor license
may use the same advertisement for both if it is approved by the department.
(8) 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 permit 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.
Section 61-9-320, S.C. Code Ann. (Supp. 1994).
3. In addition, proximity of a location to a church, school, playground, or residence is
a proper ground, by itself, on which the location may be found unsuitable for a permit to sell beer and
wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 410 S.E.2d 653 (S.C. 1991).
4. Any decision on the issuance of a beer and wine permit is not based upon the religious
or moral convictions expressed by the protestants. Although the rights of an individual or
congregation to abstain from the purchase or consumption of alcoholic beverages is respected, the
standards for judging the suitability of a proposed location is not to be determined by the local
community's religious or moral convictions. The sale of beer and wine and its consumption is lawful
within the State of South Carolina as long as it conforms to the standards and restrictions set by the
State. The presence of a restaurant that sells beer and wine for consumption by its patrons across
the street from a church does not mandate denial of the license simply because such activity may
conflict with the teachings of that religion. There is no evidence to show that the business activity
of Hooters interferes with the attendance, activities, or spiritual nourishment of the parishioners. The
location also does not interfere with the enjoyment and patronage of Gower Park or Discovery Zone.
5. Although Laurens Road is heavily travelled and there have been accidents near the
location, there is no evidence to suggest that the accidents were caused by person who were
intoxicated. The evidence reveals an average of eleven accidents a month near the vicinity of
Hooters. Hooters has only been operating since February 1995, only one month during the time
frame of the recorded accidents. There is no evidence that Hooters' patrons caused any accidents or
that the number of accidents increased during the month Hooters opened. There is no evidence that
the number of accidents occurring is unusual given the heavy flow of traffic. In addition, with the
construction in the area there may be a temporary increase in the number of accidents occurring. The
number of accidents has no bearing on the business located at that intersection.
6. Reverend Edmisten tried to demonstrate through a number of witnesses that Hooters
is not a suitable location because it has not complied with the local ordinances relating to the number
of parking spaces and because Hooters improperly used the public right of way to attain the necessary
parking spaces. Whether the business has complied with the local ordinances is a matter left to the
local authorities. Building and construction permits were issued by the City of Greenville, the South
Carolina Department of Transportation, and other authorities having jurisdiction over particular
aspects of the building and property. If during the course of construction Hooters committed some
error or violated the conditions of those permits, resolution of those issues is left for the local or state
authority issuing the permit. As a general rule, courts will not interfere with, or control or supervise,
acts of a municipal corporation, nor will they substitute their judgment for that of the proper
municipal authorities. 62 C.J.S. Corporations §199 (1949). This Division will not interfere in these
purely local issues and will not make findings of fact relating to those matters especially when the City
has not had an opportunity to specifically address this issue. For purposes of determining whether
to issue a beer and wine permit, however, the location has adequate parking.
7. Pursuant to Administrative Law Judge Division Rule 29B, issues raised in the proceedings
but not addressed in this Order are deemed denied.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore
ORDERED, that the application of Gerald R. Brooks of Hooters of Greenville, Inc. for an
on-premises beer and wine permit for Hooters restaurant located at 2401 Laurens Road in Greenville
is GRANTED. The Department shall issue a permit upon the payment of the appropriate fees.
AND IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
June _____, 1995
Columbia, South Carolina. |
