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:
Melvin Greene, MaHoggany's, Inc, d/b/a MaHoggany's Disco Lounge vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Melvin Greene, MaHoggany's, Inc, d/b/a MaHoggany's Disco Lounge

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0615-CC

APPEARANCES:
Sean T. Phelan
Attorney for Petitioner

S.C. Department of Revenue and Taxation
Respondent (Not present at the hearing)

Protestant (Pro Se):
Lt. Issac Pyatt of Georgetown County Sheriff's Department
 

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


Brown Bldg.

 

 

 

 

 

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