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 |