ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994)
and S.C. Code Ann. § 1-23-310, et seq. (Supp. 1994) for a hearing pursuant to the application of
John Robinson. The applicant seeks an on-premises beer and wine permit (AI 102481) for a
restaurant located at 1012 N. Waccamaw Drive, G-1, within the City of Garden City, County of
Horry, South Carolina.
After timely notice to the parties, a hearing was held at the Administrative Law Judge
Division in Columbia, South Carolina. Water's Edge Homeowners' Association ("the
Association") moved to intervene as a party before the hearing and the motion was granted
without objection by previous Order of the Division dated May 11, 1995. The issues considered
at the hearing were: (1) the applicant's eligibility to hold a beer and wine permit; (2) the
suitability of the proposed business location; and, (3) the nature of the proposed business activity.
The on-premises beer and wine permit is hereby granted.
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 for a restaurant located
in Garden City, South Carolina, at 1012 N. Waccamaw Drive, G-1.
2. The South Carolina Department of Revenue and Taxation's ("DOR") file was
made a part of the record by reference with the consent of the parties.
3. The Association, through William Mathews, a member of the Board of Directors,
cited the following as grounds for denial of the application: (1) granting the beer and wine permit
would not be conducive to the family atmosphere at the resort; (2) granting the beer and wine
permit would promote parking problems; (3) the Association's desire to prevent a proliferation of
establishments which serve alcoholic beverages, as the current businesses with licenses meet the
need of the area; and, (4) the applicant's use of the unit as a restaurant with a beer and wine
permit does not conform to the specific use authorized in the regime contract or the restrictive
deed.
4. The proposed location is situated on the ground floor of a one hundred and sixty-six (166) unit residential resort condominium on the oceanfront.
5. The ground floor of the condominium was designated by the developer of the
resort for commercial use and has been maintained as such. There are presently five commercial
units on the ground floor, three of which are currently in use: (1) The Rising Tide, a bar owned
by the Association, which holds a beer and wine permit and minibottle license; (2) The Water's
Edge Gift Shop, owned by the applicant, John Robinson, which holds an off-premises beer and
wine permit; and, (3) Water's Edge Grill, the restaurant in question, owned by the applicant, John
Robinson.
6. A Class A restaurant license has been issued to the applicant for Water's Edge
Grill.
7. The proposed location is currently seasonally operated as a restaurant which serves
breakfast and lunch, with hours of operation from 6:30 a.m. to 3:00 p.m. Menus are available and
the business is currently engaged primarily and substantially in the preparation and service of
meals. The proposed location is presently closed, but will reopen for the summer in June.
8. The proposed location has seating capacity for at least twenty-four (24) people
simultaneously at tables for the service of meals.
9. While the Association alleges that the specific use of the applicant's unit does not
conform to its deed restrictions or regime contract, the nature and intended use of the proposed
location conforms to the general commercial use intended for the units on the ground floor.
10. No concrete evidence was presented to show that the issuance of an on-premises
beer and wine permit, as requested by the applicant, would have an adverse impact on the
community.
11. No church, school, or playground is within close proximity to the proposed
location.
12. The applicant's spouse, Linda A. Robinson, operates and manages the restaurant.
13. The applicant and his spouse are 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.
15. The applicant currently holds an off-premises beer and wine permit for Water's
Edge Gift Shop and has not been cited for any violations; and, the applicant has not had an ABC
permit or license revoked within two years of the date of his application.
16. Notice of the application appeared in the Sun 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. 1994) 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. 1994) establishes the criteria for the issuance
of a beer and wine permit.
3. 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).
4. 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).
5. There has been no evidentiary showing that the present location is unsuitable or
that the issuance of an on-premises beer and wine permit 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 nature of the ground
floor of the resort condominium.
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. South Carolina ABC Comm'n, 276
S.C. 138, 276 S.E.2d 308 (1981).
7. The existence of other similar businesses located in the vicinity of the proposed
location does not currently disrupt the harmonious or compatible coexistence of businesses and
residences.
8. "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).
9. 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).
10. Without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact that residents, i.e., the
Association, protest the issuance of the permit and license is not a sufficient reason by itself to
deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S.
Intoxicating Liquors § 119 (1981). The grounds proffered by the Association as justification for
denial of the applicant's permit are speculative and/or not supported by sufficient evidence. While
this tribunal admitted evidence of certain deed restrictions and provisions of a regime contract, it
did so only for the limited purpose of evaluating the applicant's character for truthfulness and
veracity, as there was an allegation by the Association that the applicant had knowingly submitted
false information to the Department of Revenue and Taxation. This allegation is without merit.
Furthermore, at the beginning of the hearing, this tribunal advised the Association that it was not
in the proper forum to settle disputes regarding deed restrictions and provisions of a regime
contract between itself and the applicant.
11. The applicant satisfies all of the statutory requirements for holding an on-premises
beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premises beer and wine permit is granted for the location at 1012
N. Waccamaw Drive, G-1, Garden City, South Carolina.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an
on-premises beer and wine permit 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
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
May 30, 1995 |