ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and
S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) on the application of Petitioner Johnnie
Mae McCray for the renewal of her on-premises beer and wine permit for a nightclub located at 1034
Cedar Branch Road on Route 2 in Loris, South Carolina. The South Carolina Department of
Revenue (Department) would have granted the permit but for the protest filed by two neighboring
residents, Rhonda Hemingway and Arlinda Hemingway, concerning the suitability of the proposed
location. Accordingly, the Department was excused from the hearing of this matter. After timely
notice to the parties and the protestants, a hearing of this matter was held on September 9, 2003, at
the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence
presented regarding the suitability of the proposed location and upon the applicable law, I find that
Petitioner’s application for the renewal of her on-premises beer and wine permit must be denied.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, 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.On April 29, 2003, Petitioner Johnnie Mae McCray submitted an application to the
Department for the renewal of the on-premises beer and wine permit for the premises located at 1034
Cedar Branch Road on Route 2 in Loris, South Carolina. Without objection, this renewal application
and the Department’s file on the application were made a part of the record by reference.
2.Petitioner is over twenty-one years of age, is a legal resident and citizen of the United
States, and is a legal resident and citizen of the State of South Carolina. Further, Petitioner resides
and maintains her principal place of abode in South Carolina, and did so for at least thirty days prior
to making her application for a beer and wine permit.
3.Petitioner is a person of good moral character and has no record of any criminal
convictions. Moreover, Petitioner has no record of violating the laws governing the sale of alcoholic
beverages, and has not had a beer and wine permit issued to her suspended or revoked.
4.Petitioner currently holds an on-premises beer and wine permit, number 32005214-PBW, for the location in question and operates the location as a nightclub. Petitioner has held a beer
and wine permit for the premises since 1990 and has run a nightclub at the location for the past
thirteen years.
5.The nightclub is situated in the midst of several residences in a rural portion of Horry
County, South Carolina. Petitioner resides in a home on the same lot as her nightclub, some 145 feet
to the rear of the building. The nearest other residence is approximately 251 feet from the location,
and at least seven other residences lie within the general vicinity of the location. There are no
churches, schools, or playgrounds within close proximity to Petitioner’s club.
6.The protestants reside in the immediate vicinity of the location in question and testified
at the hearing to the negative impact of the nightclub’s operation on the surrounding residences.
Both protestants described disturbances caused by patrons of the nightclub ranging from nuisances
such as loud music playing in the club and hazardous parking along the shoulder of the road to violent
criminal activity such as fights and shootings. The protestants also described one incident in which
a bullet shot by patrons leaving the nightclub struck a nearby home.
7.In response to the protestants’ concerns, Petitioner and her witness conceded that
problems, including fights and shootings, had regularly occurred at the club, but further suggested
that such incidents are inherent in the operation of a nightclub and that the behavior of club patrons
leaving the location is beyond their control. In particular, Petitioner stated that she could not prevent
patrons from shooting into the air as they drove away from the nightclub. Petitioner also intimated
that she is not involved in the day-to-day operation and management of the nightclub. However,
while they admitted that the nightclub has been the source of disturbances, including loud music and
violent incidents, Petitioner and her witness primarily attributed the protestants’ objections to the
renewal of the permit to a personal dispute between Petitioner and the protestants.
8.Because of the proximity of the location to a residential community and its recent
history of being operated in a manner adverse to the welfare of the local residents, I find that the
nightclub’s location is unsuitable for the renewal of Petitioner’s beer and wine permit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the Administrative Law Judge Division
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2002).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C.
Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see
also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.S.C. Code Ann. § 61-4-520 (Supp. 2002) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the proposed location be a
proper and suitable one. See id. § 61-4-520(6)-(7).
4.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of a particular location for the requested permit.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5.The determination of suitability of location is not necessarily a function solely of
geography. Rather, 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. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6.In determining whether a proposed location is suitable, it is proper for this tribunal to
consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324,
338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
7.“[A] liquor license or permit may be properly refused on the ground that the location
of the establishment would adversely affect the public interest, that the nature of the neighborhood
and of the premises is such that the establishment would be detrimental to the welfare . . . of the
inhabitants, or that the manner of conducting the establishment would not be conducive to the general
welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).
8.The denial of a license to sell alcoholic beverages is appropriate where the proximity
of the proposed outlet to areas of public congregation would aggravate problems related to the
consumption of alcohol in public. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981);
see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding the denial of a retail beer
and wine permit where the applicant’s property was already the site of congregations of people
attended by some consumption of alcohol and disorder). Such denial is particularly appropriate when
the public areas surrounding the proposed location have been the source of constant law enforcement
problems. Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d
243 (1975) (upholding the denial of a retail beer and wine permit upon evidence that local law
enforcement had constant problems with public intoxication in the vicinity of the applicant’s store).
9.In considering the nature of Petitioner’s nightclub and its proximity to a residential
community, I find the location unsuitable for Petitioner to operate a nightclub with a beer and wine
permit. There are inherent consequences from the operation of a nightclub that are not conducive
to the harmonious coexistence of such an establishment with a surrounding residential community.
The residents of the community surrounding the location in question are entitled to be free of the
kinds of noise disturbances, parking and traffic problems, criminal activity, and other nuisances that
are associated with the operation of such clubs generally and that have been associated with
Petitioner’s nightclub at this particular location. “The right of a person to use his own property does
not entitle him to violate the peace and comfort of others in the vicinity.” 3 S.C. Juris. Breach of
Peace § 7 (1991). In the case at hand, the manner in which Petitioner has operated her nightclub at
the location in recent years has violated the peace and comfort of nearby residents, and the record is
devoid of any evidence to suggest that the continued operation of Petitioner’s club with a beer and
wine permit will not create similar problems in the neighboring community, particularly in light of
Petitioner’s inability or unwillingness to exercise close control over the operation of her nightclub and
the activities of her patrons. Therefore, I find that the location in question is unsuitable for the
continued sale of beer and wine for on-premises consumption.
10.Petitioner undoubtedly has a significant investment in the business she has operated
for over ten years, and this tribunal acknowledges that investment. Nevertheless, there was a
sufficient evidentiary showing in the present case that the location is unsuitable for Petitioner’s
nightclub and that the renewal of her beer and wine permit would have a significant adverse impact
on the community.
11.As the trier of fact, the issuance or denial of a permit or license rests within the sound
discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to
refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit in the instant
case is compelled because the issuance of the renewed permit would be detrimental to the inhabitants
of the community surrounding Petitioner’s nightclub.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that Petitioner’s application for the renewal of her on-premises
beer and wine permit for the premises located at 1034 Cedar Branch Road on Route 2 in Loris, South
Carolina, is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
September 30, 2003
Columbia, South Carolina |
