ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§61-1-55, et seq. (Supp. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for
a contested case hearing. The Petitioner, Terry J. Rumler, d/b/a Red Lion, seeks an on-premise beer
and wine permit and a club sale and consumption license as a nonprofit organization. A hearing was
held on June 22, 1995, at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia,
South Carolina.
The permit requested by the Petitioner is approved with restrictions.
FINDINGS OF FACT
1. The Petitioner seeks an on-premise beer and wine permit and a club
sale and consumption license for the Red Lion as a nonprofit
organization at 4 Hudson Street, Unit 2, Greenville, South Carolina.
The Red Lion incorporated as a nonprofit organization under South
Carolina law on January 26, 1994.
2. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, the Protestants, and the South Carolina
Department of Revenue.
3. The qualifications set forth in S. C. Code Ann. § 61-9-320 and S. C.
Ann § 61-5-50 (1994) concerning the residency and age of the
Petitioner are properly established. Furthermore, the Petitioner has
not had a permit or license revoked within the last two years and
notice of the application was lawfully posted both at the location and
in a newspaper of general circulation.
4. The Petitioner is of sufficient moral character to receive the permit
and license.
5. The proposed location is not close to any church, school or
playground.
6. Deputy Nichols testified that the reason for the protest by the Sheriff's
Office was the proximity of the original proposed location to the
North Hills Community Church. However, that concern was
alleviated when the Petitioner's proposed location was moved to the
current site. However, Deputy Nichols did add that he believed it
would be best if the Petitioner's current location is closed before
opening the club at the proposed location.
7. Ms. Painter objects to the suitability of the proposed location because
of the loud noise emanating from the Petitioner's current location,
especially when the exterior door remains open. Fights have also
occurred in the parking lot of his establishment.
8. The Petitioner currently has a beer and wine permit for a business
located on Old Buncombe Road ("Buncombe location"). The
Buncombe location is in the same vicinity as the proposed location but
is located in another a building approximately 300 yards away. The
building of the proposed location will be divided in half by a partition
wall. That club's entrance will be from a private parking lot off of
Kern's Avenue. The parking lot will be lighted and surrounded by a
six-foot privacy fence. Furthermore, there will be an undeveloped area
of approximately 100 feet between the parking lot and Kerns Avenue
which will act as a buffer zone.
9. The Petitioner intends to move to the proposed location and begin a
private nonprofit club. The club will primarily be a sports club which
will have no outside entertainment.
10. The Petitioner agreed to provide the following to insure the suitability
of the location:
A. The Petitioner shall install soundproof walls on the
interior of the building facing Ms. Painter's home. The
Petitioner, also, will insure that the exterior door to
the proposed location will remain closed in an effort
to prevent excess noise emanating from the club.
B. The Petitioner will close the existing establishment,
located near the proposed location, in which he holds
a beer and wine permit.
C. The Petitioner or his employees\members will police
the parking area of the proposed location to prevent
fights from occurring. The parking lot will be lighted
and surrounded by a six-foot privacy fence.
11. The proposed location is suitable for an on-premise beer and wine
permit and a club sale and consumption license as a nonprofit
organization with the Petitioner's stipulation's and restrictions set
forth below.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1994) 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. S.C. Code Ann. § 61-9-320 (Supp. 1994) sets forth the requirements
for the issuance of an on-premise beer and wine permit.
4. S.C. Code Ann. § 61-5-50 (Supp. 1994) sets forth the requirements
for the issuance of a club sale and consumption license as a nonprofit
organization. Section 61-5-50 specifically provides that principals of
the organization must possess good moral character. Furthermore,
under S.C. Code Ann. 61-5-20 (3) (Supp. 1994) the non-profit
organization is not open to the general public and only the members
and guests of the club may consume alcoholic beverages upon the
premises.
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 61-9-340 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.
8. 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 protestant objects to the issuance of the permits 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).
9. In considering the suitability of a location, it is relevant to consider the
previous history of the location and to determine whether the
testimony in opposition to the granting of a permit is based on
opinions, generalities and conclusions or whether the case is
supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301,
(1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801
(1973).
10. Permits and licenses issued by the state for the 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.
11. I conclude that the applicant meets all the statutory requirements for
holding a beer and wine permit and a club sale and consumption
license as a nonprofit organization at the proposed location.
Accordingly, I conclude that the proposed location is a proper one for
granting the above permit and license with the following restrictions
in the form of written stipulations.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit and sale and
consumption license as a nonprofit organization of Terry J. Rumler for the Red Lion at 4 Hudson
Street, Unit 2, Greenville, South Carolina be granted upon the Applicant signing a written Agreement
with the South Carolina Department of Revenue and Taxation to adhere to the stipulations which are
set forth below:
1. The Petitioner shall install soundproof walls on the interior of the
building facing Ms. Painter's home. The Petitioner, also, will insure
that the exterior door to the proposed location remains closed in an
effort to prevent excess noise emanating from the club.
2. The Petitioner shall close the existing establishment, located near the
proposed location, in which he holds a beer and wine permit.
3. The Petitioner or his employees\ members will police the parking area
of the proposed location to prevent fights from occurring. The
parking lot will be lighted and surrounded by a six-foot privacy fence.
4. The Petitioner shall provide adequate parking for the patrons and
customers of the Red Lion.
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-premise beer and wine permit and a club sale and consumption license as a nonprofit organization
upon the payment of the required fee and cost by the Applicant.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
July 12, 1995
Columbia, South Carolina |
