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:
David R. Drennon, d/b/a Night Light vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
David R. Drennon, d/b/a Night Light

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0662-CC

APPEARANCES:
James S. Klauber, Esquire for Petitioner

A. Delores Hand, Esquire for Respondent
 

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.


Brown Bldg.

 

 

 

 

 

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