SC Administrative Law Court Decisions

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 Leon E. Baughman, d/b/a Leon Everett's Hurricane Central (Applicant). The applicant seeks an on-premise beer and wine permit (101667) and an on-premise sale and consumption license for mini-bottle (101668) at 157 West Frontage Road in Aiken, South Carolina.

A hearing was held on March 13, 1995, at the office of Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina. Notice of the time, date and place of the hearing was timely given to all parties including the protestants. At the hearing, protestant St. Claire Webster made a motion to intervene as a party. He argued that since the hearing was expedited he did not have the opportunity to make his motion earlier. I found that Mr. Webster established good cause for not having made his motion earlier and made him a party to this action.

The permit and license requested by the applicant are approved with restrictions.

Without objection the Department of Revenue and Taxation's file was made a part of the record. Also introduced were two maps (Exhibit 1 and Exhibit 5) by the applicant and a photograph (Exhibit 6) by protestant Reverend Bryant. Furthermore, upon my Order and with the consent of the parties, court's Exhibit 1 was presented and made a part of record after the hearing.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties or protestants, I make the following findings of fact by a preponderance of the evidence:

1. The court has subject matter jurisdiction of this contested case.

2. The applicant seeks an on-premise beer and wine permit and an on-premise mini- bottle sell and consumption license at 157 West Frontage Road, Aiken, South Carolina.

3. Notice of the time, date, place and subject matter of the hearing was given to the applicant, protestants and South Carolina Department of Revenue.

4. At the beginning of this hearing the applicant, Mr. Webster, and the protestants stipulated to the following:

a. The applicant is a legal resident of the United States and has been a legal resident and maintained his principal place of abode in South Carolina for at least thirty (30) days.

b. The applicant has not had a permit or license revoked within two years before the date of the application.

c. The applicant is 21 years of age or older.

d. Notice of the application was lawfully posted at the location and published in a newspaper of general circulation for the required statutory period. See S.C. Code Ann. §61-9-320 (7) and (8) (Supp.1993).

5. The proposed location is a multi-purpose facility. Within the parameters of the property will be:

(1) a flea market;

(2) a grill and game room;

(3) an auditorium;

(4) a steak house and grill; and

(5) a strip mall.

The entire facility is owned by Entertainment Plus Corporation. The current shareholders of that corporation are John Davenport, Leon Baughman and Neil Farfour. The officers of the corporation are Mr. Davenport and Mr. Baughman.

6. The proposed location is situated in an area zoned commercial by Aiken County. Behind the location is an industrial park and behind the industrial park is an airport. To the east of this location is a heavy equipment repair facility.

7. There are three businesses with off-premises beer and wine permits which are a distance of 2,000 to 2,500 feet from this location. Furthermore, there is a retail liquor store one mile from this location.

8. The applicant's facility is located on a frontage road running beside Interstate I-20. Across from his facility and bordering on I-20 are approximately six to seven residences. The closest residence is 525 feet from the front of the facility.

9. The respondent and protestants complained of excessive noise emanating from the facility when the applicant has certain shows or entertainment. The complaint was lodged that the building was not designed for the entertainment that the applicant was engaged in and therefore the noise was excessive. The applicant has been operating this business for approximately two months. During this time period a variety of country music singers have come to the location and performed. The applicant has not been cited on any occasion for violating the noise ordinance. In fact, the applicant has made efforts to insure that the building would be sound proof. The ceiling has been insulated. Extra instillation has been installed in the side walls in which two sheets of 5/8 inch fire rated sheetrock were installed toward the side where the residences are located. Furthermore, the sound tech employed by the applicant is charged with monitoring the sound level with a decibel meter at all times during performances.

10. At the hearing the applicant and respondent agreed to meet within 24 hours following the hearing and attempt to reach a compromise concerning the sound levels emanating from the applicant's facility. The record was held open so that they could submit any documents reflecting that meeting and any agreement made thereafter. As a result of that meeting, two charts were prepared indicating the sound levels emanating from the applicant's facility during a performance and the sound levels present when there is no performance occurring at the applicant's facility. The parties thereafter reached a compromise which settled the concern of the excessive noise. The applicant agreed in that compromise that the noise level would be no greater than 75 decibels at 75 feet from the actual building at the proposed location. Seventy-five feet from the building is located at the first line of the concrete parking barriers.

11. The applicant serves food basically in three areas of his facility. Those areas are the grill and game room, the auditorium and the steak house and grill. There are no signs advertising beer, wine or alcohol either inside or outside of this facility.

12. The applicant seeks a beer and wine permit for on-premise consumption and a mini-bottle license for the auditorium and steak house. Both of these areas have a grade "A" rating. The steak house is engaged primarily and substantially in the preparation and service of meals. The auditorium, however, is designed to bring entertainment, weddings, seminars, etc. to the facility. There are times when the primary and substantial purpose of the auditorium will not be the preparation and service of meals.

13. The applicant and the principals, John Davenport and Neil Farfour are of good moral character. Furthermore, the corporation has a reputation for peace and order.

14. There are no schools, churches, or playgrounds located within 500 feet of this location.

15. The applicant intends to contract with a security company to have a security guard on duty during operating hours to patrol the parking lot of the proposed location. The applicant also intends to have 12 security officers inside the auditorium when there are events scheduled.

16. The applicant agreed to have employees pick up litter and debris from the grounds from the six or seven residents located across from the applicant's facility.

17. If an individual who is under the age of 21 enters the auditorium when the applicant intends to serve beer, wine or alcohol , that underage individual must surrender their driver's license at the door and receive a stamp upon their hand signifying them as a minor. When the individual attempts to leave they will be checked and if the stamp has been altered or removed in any way, then either their parents, guardians, or the local police or sheriff department will be notified of those actions.

Based upon the above findings of fact, I conclude as a matter of law the following:

1. Section 1-23-600 S.C. Code Ann. (Supp. 1993) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. Section 61-1-55 S.C. Code Ann. (Supp. 1993) grants to the Administrative Law Judge Division the powers, duties and responsibilities as hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. Section 61-9-320 S.C. Code Ann. (Supp. 1993) and §§61-3-440 et. seq. (Supp. 1993) sets forth the requirements for the issuance of an on-premise beer and wine permit and a sale and consumption license.

4. In addition to the requirements set forth above, a license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of §61-5-50 S.C. Code Ann. (Supp. 1993) are met. That section requires that a mini-bottle license be granted only to a bonified business engaged either in the business of primarily and substantially preparing and serving meals or furnishing lodging. The principals and applicant must not only be of good moral character, but furthermore, the business must also have a reputation for peace and good order.

5. As trier of fact, an Administrative Law Judge is authorized to determine the fitness or suitability of the proposed location of an applicant for a permit or license to sell alcohol, beer or wine using broad but not unbridled discretion. Byers v. S. C. ABC Commission, 316 S.E. 2d 705 (S.C. App. 1984).

6. The determination of suitability of a location is not necessarily a function 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 located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985).

7. Section 61-3-425 S.C. Code Ann. (Supp. 1993) requires an applicant seeking a license to present to the Department of Revenue and Taxation a signed statement from both the Department and the Internal Revenue Service showing the applicant doesn't owe state or federal taxes, penalties or interest.

8. Section 61-9-340 S.C. Code (Supp. 1993) provides that upon determination that the applicant meets the criteria for the issuance of a permit or license, and has not misstated or concealed a fact in the application, the South Carolina Department of Revenue and Taxation must issue the permit after payment of the prescribed fee.

9. 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 state's police power to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. The Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See, Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 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.

10. I conclude that the applicant meets all the statutory requirements for holding a beer and wine permit and a mini-bottle license and accordingly, I conclude that the proposed location is a proper one for granting the above license and permit with the following restrictions in the form of a written stipulation.

Based upon the Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Leon E. Baughman for an on-premise beer and wine permit and a mini-bottle license at 157 West Frontage Road, Aiken, South Carolina, be granted solely for the applicant's steak house restaurant and auditorium. The permit and license shall be issued with the following restrictions, upon the applicant signing a written agreement with the South Carolina Department of Revenue and Taxation to adhere to the stipulations set forth below:

1. The applicant and his employees shall prohibit loitering and the consumption of beer, wine or alcohol by his patrons/customers in the parking lot and exterior area of the proposed location. This prohibition shall be strictly enforced.

2. The applicant and his employees shall contract with a security company to have a marked patrol car to patrol the parking lot of the proposed location during any special event in which beer, wine or alcohol is sold in the auditorium. The patrol officer and the employees of Leon Baughman shall prohibit loitering and consumption of beer, wine or alcohol by the patrons or customers of this facility in the parking lot and exterior area of the proposed location. This prohibition shall be strictly enforced. Furthermore, the patrol officer and the employees of Leon Baughman shall patrol the frontage road in front of this facility to ensure that there is no loitering or parking upon the property of the local residents.

3. The applicant or his employees shall pick up litter and debris from the ground of the residences located on frontage road across from the facility after any special event is held in the auditorium. This action on behalf of the applicant or his employees shall be performed within twelve hours of the conclusion of the special event.

4. After the conclusion of any special event in the auditorium, the applicant shall, through his patrol officer and employees, supervise the orderly departure of the patrons and customers from the event.

5. The applicant shall provide adequate parking for the patrons and customers.

6. The applicant shall not allow excessive noise to emanate from the proposed location. To that end, the applicant must comply with his agreement that the noise level will be no greater than 75 decibels at 75 feet from the actual building at the proposed location. Seventy five feet from the building is located at the first line of the concrete barriers. Two or more violations of this restriction within a given year shall be considered a violation against the applicant's permit and license.

7. The applicant will employ no less than five uniform security guards to patrol the inside of the auditorium when beer, wine or alcohol is sold at a special event held in the auditorium.

8. The mini-bottle sale and consumption license for the restaurant is issued without restrictions. However, the mini-bottle sale and consumption license for the auditorium is restricted to only events for which the primary and substantial purpose of the event is the preparation and service of meals. See, Brunswick Capital Lanes v. South Carolina ABC Commission, 260 S.E. 2d 452 (1979).

IT IS FURTHER ORDERED that a violation of any one of the above conditions is considered a violation against the permit 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.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

Columbia, South Carolina

March 17, 1995