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 hearing pursuant to the application of Edward M. White, Jr., Break One Social Club, Inc., d/b/a
Breakers Lounge ("applicant") for an on-premise beer and wine permit (AI 102427) and an on-premise sale and consumption ("mini-bottle") license (AI 102459) for the premises located at 1485
Fish Chop Road (Highway 301), Orangeburg, Orangeburg County, South Carolina ("location").
A hearing was held on August 23, 1995, at the offices of the Administrative Law Judge
Division, Columbia, South Carolina. The issues considered were: 1) the nature of the proposed
business activity, and 2) the suitability of the proposed location.
The application was protested by the Orangeburg County Sheriff's Office and Hilton M.
Duncan and other residents of Orangeburg County who live in close proximity to the proposed
location. Testifying at the hearing in opposition to the issuance of the permit and license were
Captain William A. Martin of the Orangeburg County Sheriff's Office, Hilton M. Duncan, Frank
Edward Brooks, Mrs. Sue Brooks Zeigler and Mrs. Lillian Hoover. At the hearing, Mr. Duncan
motioned to intervene as a party, which motion was granted. The South Carolina Department of
Revenue and Taxation ("department"), as set forth in its prehearing statement, took no position as
to the issuance of the permit and license and did not send a representative to the hearing.
The application requests are denied.
EXHIBITS
Without objection, those certified copies of documents forwarded to the Administrative Law
Judge Division file from the department were made a part of the record.
Also, applicant placed into the record without objection a drawing/sketch of the location and
surrounding residences and businesses.
Respondent/Hilton M. Duncan and the Sheriff's Office placed into the record three (3)
exhibits as follows:
1) Seven (7) photographs taken of the location and surrounding areas;
2) Incident reports from the Sheriff's Office;
3) Violations/warnings at the location from the Sheriff's Office.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the
credibility of the witnesses, by a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties
and the protestants.
3. The applicant is seeking an on-premise beer and wine permit and an on-premise sale
and consumption license for a bar and lounge located at 1485 Fish Chop Road (Highway 301),
Orangeburg County, South Carolina.
4. The qualifications set forth in S.C. Code Ann. §61-9-320 (Supp. 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.
5. The applicant is of good moral character.
6. Applicant intends to operate the lounge Wednesdays through Saturdays between the
hours of 9:00 p.m. and 2:00 a.m.
7. The proposed location is not within 500 feet of any church, school or playground.
8. The testimony of neighbors/protestants and Captain Martin of the Orangeburg County
Sheriff's Office of past history at the location are of excessive noise, fighting, firing of weapons, acts
of disorderly conduct, excessive alcohol consumption and traffic congestion on both Highway 301
and roads leading to neighbors' homes.
9. The proposed location is not suitable for an on-premise beer and wine permit and/or
a mini-bottle sale and consumption license.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in
this matter.
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) sets forth the requirements for the issuance
of a beer and wine permit which provides in part:
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 Sate 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
application.
3. The wholesale applicant is a legal resident of the United States and has been 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 or has been licensed previously under the laws of this State.
4. The applicant, within two years before the date of application, 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.
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.
8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.
3. S.C. Code Ann. § 61-5-50 (Supp. 1994) sets forth the requirements for the issuance
of a sale and consumption ("mini-bottle") license which provides as follows:
The Department may grant a license upon finding:
(1) The applicant is a bona fide nonprofit organization or the applicant
conducts a business bona fide engaged primarily and substantially in
the preparation and serving of meals or furnishing of lodging, as
described in § 61-5-10.
(2) The applicant, if an individual, is of good moral character or, if a
corporation or association, has a reputation for peace and good order
in its community, and its principals are of good moral character.
(3) As to business establishments or locations established after November
7, 1962, § 61-3-440 has been complied with.
(4) 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, municipality, 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 and wine permit and alcoholic license may use the same
advertisement for both if it is approved by the department.
(5) 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 license 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.
(6) The applicant is twenty-one years of age or older.
(7) The applicant is a legal resident of the United States and has been a
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 application.
4. S.C. Code Ann. § 61-5-10 which defines "a business bona fide engaged primarily and
substantially in the preparation and serving of meals or furnishing of lodging" reads in part as follows:
As used in this article:
(1) "Bona fide engaged primarily and substantially in the preparation and serving of meals"
shall refer only to such a business which has been issued a Class A restaurant license prior to
issuance of license under this article and in addition provides facilities for seating not less than
forty persons simultaneously at tables for the service of meals.
(2) "Furnishing lodging" shall refer only to those businesses which rent accommodations for
lodging to the public on a regular basis consisting of not less than twenty rooms.
5. A permit may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1994) if the
applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a
sufficient number of licenses have already been issued in the state, municipality or community.
6. S.C. Code Ann. § 61-3-440 (Supp. 1994) prohibits the issuance of a liquor license for
on-premise consumption to an applicant if the place of business (location), if located outside a
municipality, is within five-hundred feet (500') of a church, school or playground. No churches,
schools or playgrounds are located within the prescribed proximity to render the proposed location
unsuitable.
7. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). As 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, 316 S.E. 2d 705 (S.C. App. 1984). It is also the fact
finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance
and weight of any testimony and evidence offered.
8. Although "proper location" is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 305
S.C. 243, 281 S.E.2d 181 (1981). 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
operation 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. 335 (1985). Any evidence adverse to the location may be
considered. The proximity of a location to a church, school or residences is a proper ground by itself,
on which the location may be found to be unsuitable and a permit denied. Byers v. South Carolina
ABC Commission, 305 S.C. 243, 407 S.E. 2d 653 (1991). Further, the court can consider whether
"there have been law enforcement problems in the area." Palmer v. S.C. ABC Commission, S.C. 246,
317 S.E.2d 476 (Ct. App. 1984).
9. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition of a permit is opinions and conclusions
or supported by facts. Taylor v. Lewis, et al., 198 S.E. 2d 801 (1973). In this instance the testimony
of the protestants consisted of first-hand knowledge of numerous incidents at the location, when
previously operated by Petitioner, of excessive noise, fighting, firing of weapons, acts of disorderly
conduct, excessive alcohol consumption and traffic congestion on both Highway 301 and the
surrounding location. Also, since the closure of the lounge by Petitioner, similar problems have
occurred at the location when "leased" by him to various individuals/groups for private parties.
Petitioner has not exercised that control over patrons' behavior nor required it when leased by him
to others. Further, law enforcement has been called on numerous occasions both by Petitioner and
others to investigate many of these complaints. To grant this permit and license at this location would
greatly impact and increase stress in terms of the safety and well-being of the citizens and their
families who live nearby as well as create additional law enforcement problems.
10. 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 police power of the State to be
used and enjoyed only so long as the restrictions and conditions governing them are complied with.
As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke
it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See
Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).
11. It is concluded that the applicant has not met his burden of proof in showing that he
meets all of the requirements for holding a retail beer and wine permit and a sale and consumption
("mini-bottle") license at the proposed location. Accordingly, I conclude that neither the activity nor
the location are proper for granting the permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Edward M. White, Jr., Break One Social Club, Inc., d/b/a
Breakers Lounge for an on-premise beer and wine permit and an on-premise sale and consumption
("mini-bottle") license located at 1485 Fish Chop Road (Highway 301), Orangeburg, Orangeburg
County, South Carolina is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
September 20, 1995 |
