South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Tammy J. Kelly, d/b/a Bo Jo's Sports Bar vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Tammy J. Kelly, d/b/a Bo Jo's Sports Bar

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0365-CC

APPEARANCES:
Tammy J. Kelly

Represented by Kenneth Allen, Esquire

S.C. Department of Revenue and Taxation

Respondent (Not present at the hearing)

Intervenors Represented by:

J. Calhoun Pruitt, Jr., Esquire

Kenneth M. Mattison, Esquire
 

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 Tammy J. Kelly. The applicant seeks an on-premises beer and wine permit (AI 103099) for a sports bar to be located at 2101 Centerville Road, outside the city limits of Anderson, Anderson County, South Carolina.

After timely notice to the parties and the protestants, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina. Without objection, the following protestants moved and were granted leave to intervene by previous Order: Robert Metz, Howard B. Addis, Gary Hayes, Catherine Hayes, Mark Thomas, Michelle Thomas, Mike Richbourg, Tanya Richbourg, Robert Garrett, Sylvia Garrett and Don Whitfield. As the record indicates, approximately 31 protestants appeared to protest the application of Tammy J. Kelly for an on-premises beer and wine permit.

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 application for an on-premises beer and wine permit is hereby denied.

FINDINGS OF FACT

Having carefully considered all testimony 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 sports bar to be located at 2101 Centerville Road, outside the city limits of Anderson, Anderson County, South Carolina.

2. The portion of the South Carolina Department of Revenue and Taxation's ("Department") file which consists of the petitioner's application was made a part of the record, by reference, with the consent of the petitioner and the intervenors.

3. The proposed location is situated at the intersection of Centerville Road and Old Pearman Dairy Road, which forms a crossroad.

4. The area surrounding the proposed location is a residential lake front community. Hartwell Ridge, Surfside Drive, and the Shady Lane Loop are three subdivisions located off of Pearman Dairy Road. The nearest subdivision is located on Shady Lane. At least three residences are directly behind the proposed location, off of Shady Lane, which are buffered by trees. The nearest residence belongs to Howard Addis, and is approximately one hundred and twenty (120) feet away from the proposed location (building to building).

5. No church, school, or playground is within close proximity to the proposed location.

6. There is a school bus stop in front of the proposed location.

7. The proposed location has been licensed with a beer and wine permit for off-premises consumption since June 10, 1982.

8. The proposed location is currently owned by Mark Rhodes, however, the applicant intends to purchase the proposed location if granted an on-premises beer and wine permit.

9. There is a convenience store located in the direct vicinity of the proposed location, owned by Mark Rhodes, which is licensed with a beer and wine permit for off-premises consumption.

10. The intervenors and protestants testified in opposition to the issuance of an on-premises beer and wine permit to the applicant. As justification for denial of the beer and wine permit, the following were cited: (1) safety concerns for the children at the bus stop across the street from the proposed location; (2) public safety concerns, in general, because of possible traffic increases and the danger of the intersection presented by poor visibility; (3) lowering of property value; (4) the intended hours of operation of the proposed location; (5) proximity of the proposed location to residences and subdivisions; (6) possibility of increased noise; (7) potential loitering; and (8) the intended change in the nature and operation of the proposed location.

11. The proposed location has an occupancy capacity of 100 persons. There is currently a twenty (20) car parking capacity with room for expansion.

12. The applicant has never held a beer and wine permit or other license for the sale or consumption of alcoholic beverages.

13. The applicant intends to operate the proposed location as a sports bar with gaming tables and a big screen television. The proposed hours of operation are Sunday through Friday, from 8:00 a.m. to 1:00 a.m. or 2:00 a.m., and Saturday, from 8:00 a.m. to 12:00 a.m. The applicant intends to serve food that may be easily prepared by use of a microwave oven.

14. The applicant and her husband, James Kelly, are of good moral character.

15. The applicant and her husband intend to operate and manage the sports bar.

12. 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.

13. Notice of the application appeared in the Anderson-Independent-Mail, 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) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this case.

2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance of a beer and wine permit.

3. 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. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4. Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge 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. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); aff'd, Moore v. South Carolina ABC Comm'n, 308 S.C. 167, 417 S.E.2d 557 (1992). The proposed location is not proper for the issuance of an on-premises beer and wine permit because of its proximity to residences.

6. The nature and operation of the proposed business and its impact on the community within which it is to be located are considerations in determining suitability of the location. 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). It is inescapable that the nature and operation of a sports bar with an on-premises permit is different from and less conducive to a residential area than is a gas station/convenience store with an off-premises permit. The primary purpose of a sports bar is to provide a place for entertainment and a place to drink, whereas the primary purpose of a gas station/convenience store is to provide food, gas, and convenience items. In the instant case, the primary revenue will be derived from beer sales. For the foregoing reasons, the nature of the proposed business activity also renders the proposed location unsuitable.

ORDER

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

ORDERED that the application of Tammy J. Kelly for an on-premises beer and wine permit for a location at 2101 Centerville Road, within the county of Anderson, South Carolina, is hereby denied.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Edgar A. Brown Building

1205 Pendleton Street

Columbia, South Carolina 29201

August 16, 1995


Brown Bldg.

 

 

 

 

 

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