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:
James Hammond, III, d/b/a Social Specialty Club #2 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
James Hammond, III, d/b/a Social Specialty Club #2

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0531-CC

APPEARANCES:
Evert Comer, Jr., Attorney for Petitioner

Town of Denmark Chief of Police, Joseph S. Jenkins, Jr., (pro se) Spokesperson for Protestants
 

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. (1986 & Supp. 1994) upon an application for an

on-premises beer and wine permit for 208 Magnolia Street, Denmark, South Carolina, by

James Hammond, III, filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on October 4, 1995. 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 is denied.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) Petitioner seeks an on-premises beer and wine permit for a location at 208 Magnolia Street, Denmark, South Carolina, having filed an application with DOR, AI #103822.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the Petitioner, Protestants, and DOR.

(3) DOR did not appear at the hearing; however, DOR filed the following statement with the Court:

But for the unanswered question of suitability of location,

the Department would have issued this licenses/permit. As the department

has no evidence concerning suitability of this location it does not intend to

appear at the hearing. Its failure to appear at the hearing does not indicate

a waiver of its rights as a party to this action, and is not to be considered a

default under Rule 23 of the Administrative Law Judge Division. If the

Petitioner appeals the Court's decision in this matter, and no additional

parties have been admitted, the department will actively participate as a

party in the appeal.

(4) The proposed location is located in downtown Denmark along a connected row of storefronts which include (from west to east) an IGA Supermarket, Fulmer's ABC Store, the proposed location, and Jap's bar and lounge. The IGA holds an off-premises beer and wine permit; Fulmer's holds a retail liquor license; and Jap's holds an on-premises beer and wine permit.

(5) The proposed location has a history of being the site and origin of extensive criminal activity.

(6) The proposed location is owned by Hank Fulmer, also owner of the adjacent ABC Store.

(7) Since Mr. Fulmer first purchased the proposed location in approximately 1980, he has leased the premises to others to be used as a nightclub. The proposed location has been previously licensed to sell beer and wine under former licensees.

(8) Until late 1994, the proposed location was licensed to sell beer and wine under the permit of Vincent Carter, d/b/a Shaft Game Room Club. Mr. Carter surrendered his permit pursuant to a circuit court order resulting from a probation violation. Vincent Carter is not affiliated with Petitioner nor the proposed location or business any longer.

(9) While operating under the previous permittee, the proposed location and immediate vicinity of Magnolia Street was the site of criminal activity, including: drug possession, sales, and use; possession and discharge of firearms; prostitution; physical violence; destruction of property; public consumption and intoxication; and loitering. Denmark Police Department officers have answered numerous calls and made arrests at or near the proposed location during the past three years, involving a variety of charges.

(10) Crowds as large as 500 people have congregated in the one block area surrounding the proposed location during the night hours of operation of the formerly licensed proposed location and nearby Jap's bar and Lounge.

(11) Patrons of the proposed location, when licensed previously, have tended to range in age from 18 to 23.

(12) Jap's, located approximately thirty feet from the proposed location, attracts an older adult clientele.

(13) Protestants, Chief Jenkins of the Denmark Police Department, and Marion Hope, owner and manager of the IGA Supermarket, oppose issuance of the permit because of concerns that criminal activity will increase, causing public safety and law enforcement problems.

(14) Persons working in the area fear for the safety of themselves, their customers, and others due to persons under the influence of alcohol and/or other drugs.

(15) The availability of beer and wine for consumption in the immediate vicinity of the proposed location is one of the contributing causes of the public safety problems in the area.

(16) Activities at the proposed location, when previously licensed, have resulted in littering, public urination, public intoxication, loitering, property damage, and panhandling in the parking lot of the IGA Store.

(17) The Denmark Police Department has a total of six officers, with two officers on active duty during the night shift.

(18) Because of limited resources, the Denmark Police Department was unable to adequately control criminal activity on Magnolia Street when the proposed location was previously licensed.

(19) Petitioner is also the owner and operator of a licensed location in Blackville, South Carolina, approximately eight miles from the proposed location. The Blackville club has been open for approximately four years.

(20) Petitioner's lease with Hank Fulmer contains the following conditions:

(a) Building must not be used as a game room;

(b) Lease may be terminated for loud noise, public nuisance, or

selling alcohol or catering to minors.

(21) Petitioner intends to hire Belmont Security Company of Columbia, to provide security at the proposed location. If contracted, a security guard would check identification at the door, patrol the premises and parking areas, prohibit loitering and outside drinking, and use arrest powers when necessary.

(22) Since the most recent licensee surrendered the beer and wine permit of the proposed location, criminal activity has declined, but public safety problems continue to exist in the area.

(23) Despite good faith efforts and precautions proposed by Petitioner and the owner of the proposed location, Mr. Fulmer, it is likely that the proposed location will create a law enforcement problem if licensed again.

(24) The applicant is of good moral character.

(25) The applicant is over twenty-one years of age, is a resident of the State of South Carolina, and has maintained his principal residence in South Carolina for more than thirty days.

(26) The applicant has not had a permit revoked in the last two years.

(27) 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) The South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and Chapter 23 of Title I of the 1976 Code, as amended.

(2) S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the criteria to be met before 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. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

(4) The proposed business activity is not proper for the proposed location considering the impact of the sale and consumption of beer and operation of a night club at the location upon criminal activity and law enforcement problems in the area. Palmer v. S.C. ABC Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct.App. 1984).

(5) The proposed location is unsuitable for the sale of beer and wine because of the tendency of the location to attract minors, drug users, and drug dealers.

(6) The proposed business activity is not proper for the proposed location considering the impact of the operation of a nightclub and the sale and consumption of beer upon criminal activity and the limited resources of law enforcement in the area.

ORDER

IT IS THEREFORE ORDERED that DOR deny the on-premises beer and wine permit applied for.

_______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

October 13, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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