ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
§ 1-23-310, et seq., upon an application for an on-premises beer and wine permit and club sale
and consumption license for 2217-B West Blue Ridge Drive, Greenville, South Carolina, by Terry
R. Mote filed with the South Carolina Department of Revenue and Taxation (hereinafter referred
to as "DOR"). A hearing was held on August 28, 1995. The license and permit are opposed by a
nearby resident and local minister. The issues considered were: (1) the applicant's eligibility to
hold a permit; (2) the suitability of the proposed business location; and (3) the nature of the
proposed business activity. The permit and license applications are granted, with restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an on-premises beer and wine permit and club sale and consumption
license for a location at 2217-B West Blue Ridge Drive, Greenville, South Carolina, having filed
applications with DOR, AI #102025 and AI #102026.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) DOR did not appear at the hearing nor indicate any opposition to the issuance of the
permit or license.
(4) The DOR file was incorporated by reference as a part of the record of the hearing.
(5) Petitioner plans to operate the business as a nonprofit corporation and private sports
club.
(6) Petitioner seeks the license and permit sought on behalf of Legend's of Seneca, Inc., a
nonprofit corporation, granted a certificate of incorporation by the Secretary of State April 28,
1995, and subsequently adopting bylaws August 3, 1995.
(7) The proposed location is located in Greenville County in the Town of City View;
however, pursuant to a recent referendum, City View will surrender its municipal charter on
December 31, 1995, and the area will be part of unincorporated Greenville County as of that date.
Accordingly, the proposed location is and will be within the jurisdiction of the Greenville County
Sheriff's Department.
(8) The proposed location is a mixed commercial and residential area.
(9) City View Coin Laundry is adjacent to the proposed location, at the corner of Hoyt
Street and W. Blue Ridge Drive.
(10) Smith's Flowers, a florist shop, is located adjacent to the proposed location.
(11) The proposed location has been used in the recent past as a used car lot.
(12) There are no churches, schools, or playgrounds within 500 feet of the proposed
location.
(13) City View First Baptist Church is located on W. Blue Ridge Drive, approximately
790' from the proposed location.
(14) Several residences are in close proximity to the proposed location, predominately to
the rear of the business on Hoyt Street..
(15) Protestants fear that noise from the proposed location caused by music, car traffic
on Hoyt Street, and patrons entering and leaving the establishment will unduly disturb nearby
residents.
(16) The proposed location is a newly constructed prefabricated steel building.
(17) Sound control insulation and a double set of doors have been installed at the
proposed location to reduce the level of noise heard outside of the building.
(18) The business premises, which partially abuts Hoyt Street, is bounded by a chain link
fenced with barbed wire across the top.
(19) The chain link fence also has a gate which allows access from Hoyt Street.
(20) Petitioner stipulates that the gate will remain locked and unused after construction of
the proposed location is completed.
(21) The anticipated hours of operation of the proposed location are 11:00 a.m. to 2:00
a.m., Monday - Saturday, and 1:00 p.m. to 12:00 midnight, Sunday.
(22) Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained his principal residence in South Carolina for more than thirty days.
(23) Petitioner has not had a permit/license revoked in the last five years.
(24) Petitioner applicant is of good moral character.
(25) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen 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. 1993) provides that the South Carolina
Administrative Law Judge Division is empowered 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. 1993) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1993) set forth the requirements for
a minibottle license.
(4) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1993).
(5) 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, 316 S.E.2d
705 (S.C. App. 1984).
(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 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).
(7) Petitioner meets the statutory requirements for issuance of a beer and wine permit and
minibottle license.
(8) 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.
(9) 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 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).
(10) The proposed location is suitable and proper, in light of the past commercial nature
of the location, the existence of other commercial businesses in close proximity, and the
restrictions on the license contained in this Order.
(11) Petitioner meets the statutory requirements for issuance of a beer and wine permit..
(12) Pursuant to Rule 29(B), ALJD Rules of Procedure, all issues raised in these
proceedings not expressly addressed in this Order are deemed denied.
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit application
and business sale and consumption license be granted, with the following restrictions and
conditions, upon the applicant signing a written agreement to be filed with DOR to adhere to the
stipulations set forth below:
(1) The licensee must not sell, serve, or allow possession or consumption of beer,
wine, or liquor on any part of the business location except for the indoor area of the
licensed premises.
(2) Live music is prohibited on the licensed premises during the hours of 12:00
midnight and 10:00 a.m.
(3) The licensee must keep the Hoyt Street gate closed and locked at all times.
IT IS FURTHER ORDERED that a violation of any of the above conditions is
considered a violation against the permit and may result in a fine, suspension, or revocation.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 18, 1995 |
