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. (Rev. 1986 and Supp. 1994) upon the application of David Drennon
for an on-premise beer and wine permit and a sale and consumption (minibottle) license for Night
Light located in McCormick, South Carolina. After notice to the parties, a hearing was conducted
on January 5, 1996. Prior to the hearing, the Department determined that Night Light did not meet
the requirements of S.C. Code Ann. § 61-5-20(4) for the issuance of the sale and consumption license
and denied the application for the minibottle license. Petitioner did not seek review of that decision.
The sole issue presented at the hearing was the suitability of the proposed business location. The
Department would have granted the permit but for the protests by residents in the vicinity of the
location. Based upon the evidence presented, the beer and wine permit is granted with certain
restrictions.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence, and taking into account the
credibility of the witnesses:
1. The applicant, David R. Drennon, is over 21 years of age and is a legal resident of
South Carolina and the United States.
2. He has no criminal record and is a person of good moral character.
3. The proposed location is a lounge located on Highway 28 one-tenth of a mile outside
the city limits of McCormick. The building is located in a field surrounded by woods and an open
area. The proposed hours of operation are Thursday through Saturday, 9:00 p.m. to 1:00 or 2:00
a.m.
4. There are residences in the vicinity, some located behind the building and others
located along Highway 28 and on Oak Hill Drive. Most of the protestors appearing at the hearing
live on Oak Hill Lane.
5. There are no churches, schools or playgrounds in the area.
6. Notice of the application was posted at the location and published in the McCormick
Messenger, a newspaper of general circulation in the county, for the time period required.
7. The protestors object to the application primarily because of the noise that would
emanate from the location and fear of increased criminal activity. There has been some illegal drug
activity and at least one auto breaking on Oak Hill Lane causing concern for the residents. Oak Hill
Lane is the first street inside the city limits crossing Highway 28 and is approximately one-tenth to
two-tenths of a mile from the location. The community is composed of some elderly and physically
handicapped persons as well as middle aged persons with families consisting of children and
teenagers.
8. Mr. Drennon has contacted a security guard to provide services during the hours of
operation. In addition, he has established certain rules for conduct to be posted at the location. No
live bands will be allowed at the location.
CONCLUSIONS OF LAW
Based upon the findings of fact, I make the following conclusions of law:
1. The Administrative Law Judge is vested with the powers, duties and responsibilities
by the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23
of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1994).
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the statutory requirements for the
issuance of beer and wine permits. It provides in part that the location must be suitable.
3. The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
4. A beer and wine permit issued by the State is a privilege granted in the exercise of the
police power of the State. It may be used and enjoyed only so long as the restrictions and conditions
governing it are fulfilled. This Division is authorized to place restrictions and conditions on the
permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22
(1943).
DISCUSSION
The applicant meets the statutory requirements for the issuance of an on-premise beer and
wine permit. The location is a suitable one. This location is in an area that will provide adequate
insulation from the operation of the lounge. The residents fear increased criminal activity, but there
is no credible evidence that the operation of the lounge three days a week will add to any illegal
activity. However, because the primary complaints focus on the music, certain restrictions are
reasonable.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore,
ORDERED, that the Department of Revenue and Taxation shall issue an on-premise beer and
wine permit to David R. Drennon for Night Light located on Highway 28 in McCormick with the
following restrictions and conditions:
1. No speakers or devices to transmit sound or music to the outside are allowed;
2. Live bands or live entertainment shall not perform on the premises;
3. A security guard shall be employed during all hours of operation;
4. A security guard shall patrol the outside of the location hourly during operation to
determine whether music from the location can be heard at the nearest residence and on Oak Hill
Lane and shall inform management to adjust the volume if the music can be heard.
IT IS FURTHER ORDERED, that a violation of any of the items above is considered a
violation against the permit and may result in a fine, suspension, or revocation of the permit. The
conditions must be prominently displayed for the public at the location.
AND IT IS SO ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
January _____, 1996
Columbia, South Carolina. |