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
Melvin Greene. The applicant seeks an on-premises beer and wine permit (AI 102894) and a
minibottle license (AI 102895) for a disco lounge/restaurant located at Route 4, Box 593-F in the
Brown's Ferry Community of Georgetown County, South Carolina.
After timely notice to the parties and the protestant, a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. Lt. Issac Pyatt of the
Georgetown County Sheriff's Department appeared on behalf of the Sheriff's Department and
twenty-one (21) protestants of the Brown's Ferry Community to protest the application of Melvin
Greene. The protestant did not move to intervene as a party. The only issue in dispute and
considered at the hearing was the suitability of the proposed location. The Findings of Fact and
Conclusions of Law are accordingly confined to the issue of suitability. The on-premises beer and
wine permit and minibottle license are 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 (AI 102894) and a
minibottle license (AI 102895) for a location at Route 4, Box 593-F in the Brown's Ferry
Community of Georgetown County, South Carolina.
2. This location was denied a beer and wine permit on June 10, 1994 by an Order
issued by Judge Lee because it was determined to be an unsuitable location. Thomas L. Linnen,
d/b/a Paradise III vs. South Carolina Department of Revenue, Docket No. 94-ALJ-0023. The
location was adjudged to be unsuitable because of past criminal activity occurring on the premises
when the location was previously licensed and inadequate police protection in the community.
3. The proposed location is located in a rural community with residences in close
proximity.
4. When the proposed location was last licensed, under management other than the
petitioner and Maurice MaHoggany, certain residents of the community experienced problems
with patrons of the location parking on their property, random shootings, and noise from music
emanating from the proposed location. The criminal activity did not only affect residents in close
proximity to the proposed location, but "spilled" over into the entire community.
5. The petitioner nor the prospective manager and president of MaHoggany's Disco
Lounge were associated with previous managements of the proposed location.
6. Approximately 50% of the petitioner's business will be engaged in the preparation
and service of meals and 50% will be devoted to entertainment.
7. Petitioner intends to employ twenty (20) full-time and twenty (20) part-time
employees from the community to work in the proposed location.
8. The proposed location has a capacity for 600 - 900 persons.
9. Petitioner intends to actively engage in civic activities in the community.
10. The President of the proposed location, Maurice MaHoggany, has approached and
had discussions with Officer Sammy Moultrie, Jr. of the Georgetown County Sheriff's Department
about providing off-duty security for the proposed location.
11. Officer Moultrie testified that while security will vastly curtail criminal activity at
the type of location Petitioner intends to operate, it will not prevent such activity. Furthermore,
according to Officer Moultrie, nightclubs such as petitioner's will foster or at least make criminal
activity more likely than not.
CONCLUSIONS OF LAW AND DISCUSSION
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) authorizes the South Carolina
Administrative Law Judge Division 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. 1994) establishes the criteria for the issuance
of a beer and wine permit.
3. S.C. Code Ann. § 61-5-25 (Supp. 1994) and S.C. Code Ann. § 61-5-50 (Supp.
1994) establish the criteria for the issuance of a minibottle license to a restaurant.
4. Although "proper location" is not statutorily defined, broad discretion is vested in
the 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 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).
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.2d 335 (1985); Schudel v. South Carolina ABC Comm'n, 276
S.C. 138, 276 S.E.2d 308 (1981).
7. "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); Moore v. South Carolina ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555
1992).
8 In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C.
504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984); See also Moore v. South Carolina ABC Comm'n, 308 S.C. 167, 417 S.E.2d
557 (1991).
9. 23 S.C. Code Regs. 7-96 (1976) provides:
The Alcoholic Beverage Control Commission will not hear an
application for a retail beer and wine permit or an application
for a retail off-premise beer permit when the location
involved has been declared by the Alcoholic Beverage
Commission to be improper unless and until the applicant can
affirmatively show that some material change with respect to
the location has occured, or unless otherwise ordered by the
Alcoholic Beverage Control Commission.
10. There is nothing in the record that calls into question the character or intentions of
the Petitioner, Mr. Greene or Mr. MaHoggany, President of MaHoggany's, Inc., as it relates to
the well being of the Brown's Ferry Community. Neither of them were associated with the
previous managements of the proposed location. As this location was previously denied a beer
and wine permit because Judge Lee adjudged it unsuitable, due to the criminal activity occurring
on its premises and lack of police protection for the community, it is incumbent upon the
petitioner to affirmatively show that some material change has occurred at the location to render it
suitable. 23 S.C. Code Regs. 7-96 (1976). Petitioner proffered testimony through its witness,
Mr. MaHoggany, that the proposed location would have security guards; that it would provide
employment opportunities for members of the community; and, that MaHoggany's would be
involved in community civic activities.
In this matter, focus should not be diverted from the fact that the proposed location is
situated in a residential community, albeit a rural one. The members of this community are
entitled to be free of the kinds of criminal activity, noise disturbances, and parking problems
which occurred when the proposed location was previously licensed. There is a clear pattern of
such criminal activities and nuisances at the proposed location regardless of past managements.
This tribunal has no reason to doubt Mr. Greene's or Mr. MaHoggany's sincerity in providing
security guards to eliminate criminal activity at the proposed location. However, even their
prospective principal to provide such security, Officer Moultrie, testified that security may vastly
curtail criminal activity, but can not prevent it. He further stated that nightclubs foster or at least
make criminal activity more likely.
Accordingly, this tribunal concludes that the petitioner has failed to affirmatively
demonstrate a material change with respect to the proposed location to render it suitable.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premises beer and wine permit and minibottle license at Route 4,
Box 593-F in the Brown's Ferry Community of Georgetown County, South Carolina are hereby
denied.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
October 19,1995
Columbia, South Carolina |