ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§ 61-1-55, et. seq. (Supp. 1995) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1995)
for a hearing pursuant to the applications of Kevin B. Gilreath and J.J. Moates, d/b/a Dugout Sports
Lounge ("applicants") for an on-premise beer and wine permit (AI 105711) and an on-premise sale
and consumption ("mini-bottle") license (AI 105712) for the premises located at 24 Woodmede Way,
Greenville, Greenville County, South Carolina ("location").
A hearing was held on March 29, 1996, at the Anderson County Courthouse, Anderson,
South Carolina. The issues considered were: 1) the nature of the proposed business activity, and 2)
the suitability of the proposed location.
The application was protested by Forest Hills Baptist Church and several residents who live
in close proximity to the proposed location. Testifying at the hearing in opposition to the issuance
of the permit and license were Wayne Thomas, Vice Chairman of the Board of Deacons at Forest
Hills Baptist Church, and William B. Hoy, a nearby resident. The South Carolina Department of
Revenue and Taxation ("Department"), as set forth in its prehearing statement, stated it would have
issued the permit and license but for the protest. The Department's Motion to be Excused from
appearing at the hearing was granted.
The application requests, with restrictions, are granted upon compliance with requirements
as enumerated herein.
EXHIBITS
Those certified copies of documents forwarded to the Administrative Law Judge Division file
from the Department were made a part of the record. However, little probative value is given to any
"petitions" with signatures seeking a grant or denial of the permit and license.
Various other exhibits were entered into the record at the hearing by Petitioner and a
protestant.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony and having judged the
credibility of the witnesses, by a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties
and the protestants.
3. The applicant is seeking an on-premise beer and wine permit and an on-premise sale
and consumption license for a sports lounge located at 24 Woodmede Way, Greenville, Greenville
County, South Carolina.
4. Applicant/J.J. Moates is single, 38 years of age, a 15 year employee with Piedmont
Natural Gas, and has been a resident of Greenville County for the past 15 years. Applicant/Kevin B.
Gilreath is married with two children, is 33 years of age, a 14 ½ year employee with Piedmont
Natural Gas and a lifelong resident of Greenville County.
5. Neither applicant has ever had a beer and wine permit or a business sale and
consumption (mini-bottle) license revoked.
6. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Greenville News, a newspaper of general circulation in the local area where the
applicant proposes to engage in business.
7. Notice of the application has been given by displaying a sign for a minimum of fifteen
(15) days at the site of the proposed location.
8. The applicants are of good moral character and have no record of any criminal
convictions.
9. Applicants executed a partnership agreement on October 17, 1995 evidencing their
business relationship in operating Dugout Sports Lounge and sharing equally in its profits. The
partnership is a bona-fide non-profit organization.
10. Applicants agreed to a written sublease on the building and 0.46 acres, more or less,
located at 24 Woodmede Way, Greenville, Greenville County, South Carolina, with the lessee,
D'Camms, Inc., which leased the property from its owner, James Samuel Cox.
11. Applicants, together with the property owner, have renovated the building both inside
and outside.
12. The property was originally constructed for usage as a 7-11 convenience store. Later,
the building was used for a bakery. For the last two to three years, prior to renovation by the
applicants, the property was abandoned and falling into disrepair.
13. The property is not located within a municipality. However, it is zoned for
commercial uses within Greenville County. On one side, separated by a chain link fence, is the
Camelot Inn Motel. On the location's rear boundary and on the other side boundary is a pine thicket
which separates the location from Pine Creek Drive. Across and fronting on Pine Creek Drive are
the homes of various individuals who are protesting the applications.
14. There are no schools or playgrounds within close proximity to the proposed location.
The nearest church is St. John's Methodist Church, located approximately 1056 feet from the
location. Forest Hills Baptist Church is located even further away from the location than St. John's
Methodist Church.
15. Located across the road, directly in front of the Camelot Inn, is a BP Convenience
store which abuts on U.S. Highway 25, a four-lane, heavily trafficked highway connecting Greenville
and Greenwood, South Carolina. The area is highly commercialized with motels, fast food
establishments, gas stations, convenience stores and a retail liquor store.
16. The location is very close to the I-85 and U.S. Highway 25 interchange, which is
presently undergoing extensive roadwork and bridge construction.
17. Applicants intend to operate the sports lounge from 10:30 a.m. to 2:00 a.m. Monday
through Friday, and from 10:30 a.m. to 12:00 a.m. on Saturday.
18. Food consisting of short-orders and chicken wings will be served at the location.
19. The sports lounge will have a game room with video poker machines and pool tables.
Billiard tournaments will be held.
20. Applicants have entered into a management and licensing agreement with Douglas P.
Camerato and his corporation, D'Camms, Inc. They will provide management training to applicants
and their staff and, after applicants and staff are sufficiently trained and able to manage the lounge,
Mr. Camerato will provide at least weekly visits to the location to oversee its operation and ensure
all policies and procedures incorporated in the licensing agreement are followed. (See Petitioners'
Exhibit A)
21. This is the third location licensed as Dugout Sports Lounge by D'Camms, Inc.
22. No individuals under 21 years of age will be allowed inside the lounge unless
accompanied by a parent or unless the individual agrees to wear a wrist band.
23. Live music or bands will not be permitted to perform at the location. However, a
jukebox, videos or a stereo system will be allowed.
24. Applicants intend to construct chain link fences on the two sides bounded by the pine
thicket. However, applicants are agreeable to the construction of a wooden fence as opposed to a
chain link fence, if required in order to obtain the permit and license.
25. Applicants intend to employ a doorman to ensure all patrons entering the location are
at least 21 years of age.
26. Mr. Camerato has operated sports lounges in the past. Neither he nor any employee
at any of his locations have ever been found to be in violation of an ABC statute or regulation.
27. Applicants hope to create an atmosphere conducive for parents and their children to
patronize the location.
28. Applicants intend to actively participate as hands-on proprietors in the management
and operation of the lounge.
29. The protestants voiced several concerns at the hearing. They objected to the
location's proximity to St. John's Methodist Church, Forest Hills Baptist Church and their residences,
all of which are located behind the proposed location. (See Protestant's Exhibit A and Applicants'
Exhibit H) Other concerns voiced by the protestants were as follows: 1) the area already has
sufficient locations at which alcoholic beverages can be purchased; 2) the location, if permitted and
licensed, will create a nuisance which will have a negative impact on the fair market value of their
residences; 3) noise emanating from the location, combined with the already loud noise resulting
from vehicular traffic in front of their residences and from the Camelot Inn, will make it difficult to
live in their homes peacefully; 4) additional traffic will result on roadways in front of their residences
which will create hazardous situations; and 6) excessive littering and drinking at the location.
30. Except for the protests filed, the Department would have issued the beer and wine
permit and business sale and consumption license.
31. The proposed location is suitable for an on-premise beer and wine permit and business
sale and consumption (mini-bottle) license, subject to restrictions as hereinafter enumerated.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in
this matter.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) sets forth the requirements for the issuance
of a beer and wine permit which provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee
and servant of the applicant to be employed on the licensed premises, are of good moral
character.
2) The retail applicant is a legal resident of the United States and has been a legal resident of
this Sate for at least thirty days before the date of application and has maintained his
principal place of abode in South Carolina for at least thirty days before the date of
application.
3) The wholesale applicant is a legal resident of the United States and has been a legal
resident of the United States and has been a legal resident of this State for at least thirty days
before the date of application or has been licensed previously under the laws of this State.
4) The applicant, within two years before the date of application, has not had revoked a beer
or a wine permit issued to him.
5) The applicant is twenty-one years of age or older.
6) The location of the proposed place of business of the applicant is in the opinion of the
department a proper one. The department may consider, among other factors, as indications
of unsuitable location the proximity to residences, schools, playgrounds and churches.
7) Notice of application has appeared at least once a week for three consecutive weeks in a
newspaper most likely to give notice to interested citizens of the county, city, or community
in which the applicant proposes to engage in business.
8) Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.
3. S.C. Code Ann. § 61-5-50 (Supp. 1995) sets forth the requirements for the issuance
of a sale and consumption ("mini-bottle") license which provides as follows:
The Department may grant a license upon finding:
1) The applicant is a bona fide nonprofit organization or the applicant
conducts a business bona fide engaged primarily and substantially in
the preparation and serving of meals or furnishing of lodging, as
described in § 61-5-10.
2) The applicant, if an individual, is of good moral character or, if a
corporation or association, has a reputation for peace and good order
in its community, and its principals are of good moral character.
3) As to business establishments or locations established after November
7, 1962, § 61-3-440 has been complied with.
4) Notice of application has appeared at least once a week for three
consecutive weeks in a newspaper most likely to give notice to
interested citizens of the county, municipality, or community in which
the applicant proposes to engage in business. The department shall
determine which newspapers meet the requirements of this section
based on available circulation figures. However, if a newspaper is
published within the county and historically has been the newspaper
where the advertisements are published, the advertisements published
in that newspaper meet the requirements of this section. Applicants
for a beer and wine permit and alcoholic license may use the same
advertisement for both if it is approved by the department.
5) Notice has been given by displaying a sign for fifteen days at the site
of the proposed business. The sign must:
(a) state the type of license sought;
(b) tell an interested person where to protest the application;
© be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the department.
6) The applicant is twenty-one years of age or older.
7) The applicant is a legal resident of the United States and has been a
resident of this State for at least thirty days before the date of
application and has maintained his principal place of abode in South
Carolina for at least thirty days before the date of application.
4. S.C. Code Ann. § 61-5-10 (Supp. 1995) which defines a bona fide business engaged
primarily and substantially in the preparation and serving of meals or furnishing of lodging reads in
part as follows:
As used in this article:
(1) "Bona fide engaged primarily and substantially in the preparation and serving of meals"
shall refer only to such a business which has been issued a Class A restaurant license prior to
issuance of license under this article and in addition provides facilities for seating not less than
forty persons simultaneously at tables for the service of meals.
(2) "Furnishing lodging" shall refer only to those businesses which rent accommodations for
lodging to the public on a regular basis consisting of not less than twenty rooms.
5. A license for the sale and consumption of alcoholic beverages must not be granted
unless the provisions of § 61-5-50 are met. In addition to the requirements contained in S.C. Code
Ann. § 61-9-320, § 61-5-50 requires that the mini-bottle licensee be either a bona fide non-profit
organization or conduct bona fide business engaged primarily and substantially in food preparation
and service or the furnishing of lodging.
6. A permit may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1995) if the
applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a
sufficient number of licenses have already been issued in the state, municipality or community.
7. S.C. Code Ann. § 61-3-440 (Supp. 1994) prohibits the issuance of a liquor license for
on-premise consumption to an applicant if the place of business (location) is within three hundred feet
(300') of any church, school or playground within a municipality or is within five-hundred feet (500')
of a church, school or playground situated outside of a municipality. No churches, schools or
playgrounds are located within the prescribed proximity to render the proposed location unsuitable. 8. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
South Carolina ABC Comm'n, 218 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). 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. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and
determine the relevance and weight of any testimony and evidence offered.
9. Although "proper location" is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 305
S.C. 243, 281 S.E.2d 181 (1981). 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). Any evidence adverse to the location may
be considered. The proximity of a location to a church, school or residences is a proper ground by
itself, on which the location may be found to be unsuitable and a permit denied. Byers v. South
Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider
whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282
S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
10. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition of a permit is opinions and conclusions
or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the
testimony of the protestants consisted only of opinions and a claimed detriment to their community
which is conjectural and without any factual support. No church, school or playground are in close
proximity to the location. No evidence was proffered showing the grant of this permit and license
would greatly impact property values, increase stress in terms of the safety and well-being of the
residential neighborhood to the rear of the lounge or create any law enforcement problems. Mr.
Camerato has a previous history of enforcing strict rules of behavior and dress at his establishments
and working well with local law enforcement to minimize and prevent disorderly conduct, loud noise
or littering problems. The restrictions herein incorporated, agreed to by Petitioners at the hearing,
should alleviate all concerns of the protestants. Accordingly, I find the location suitable for granting
the permit and license.
11. S.C. Code Ann. § 61-9-340 (Supp. 1995) states that upon a determination that an
applicant meets the criteria set forth and has not misstated or concealed a fact in the application, the
S.C. Department of Revenue and Taxation must issue the permit after payment of the prescribed fee.
12. S.C. Code Regs. 7-88 (1976), authorizing the imposition of restrictions to permits,
provides:
Any stipulation and/or agreement which is voluntarily entered into by an
applicant in writing for a beer and wine permit between the applicant and the South
Carolina Alcoholic Beverage Control Commission, if accepted by the Commission,
will be incorporated into the basic requirements for the enjoyment and privilege of
obtaining and retaining the beer and wine permit and which shall have the same effect
as any and all laws and any and all other regulations pertaining to the effective
administration of beer and wine permittees.
In the event that evidence is presented to this Commission that any part of the
stipulation or agreement is or has been knowingly broken by the permittee will be a
violation against the permit and shall constitute sufficient grounds to suspend or
revoke said beer and wine permit.
13. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights
or property, but are rather privileges granted in the exercise of the police power of the State to be
used and enjoyed only so long as the restrictions and conditions governing them are complied with.
As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke
it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See
Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
14. A violation of any regulation or code section of the Alcoholic Beverage Control Act
is punishable by revocation or suspension of the license pursuant to S.C. Code Ann. § 61-5-60 (Supp.
1995).
15. S.C. Ann. § 61-3-425 (Supp. 1995) prohibits the issuance of a license under Title 61
until the applicant presents to the department a signed statement both from the Department and the
Internal Revenue Service showing the applicant doesn't owe the state or federal government
delinquent taxes, penalties or interest.
16. I conclude that the applicants have met their burden of proof in showing that they meet
all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption
("mini-bottle") license in regards to its location and activity. However, I further conclude that the
applicants have not established before this Court compliance with S.C. Code Ann. § 61-3-425 and
therefore the issuance of the license is contingent upon the applicants satisfying those requirements.
I further conclude that the proposed location is a proper one for granting the permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the applications Kevin B. Gilreath and J.J. Moates, d/b/a Dugout Sports
Lounge for an on-premise beer and wine permit and a business sale and consumption (mini-bottle)
license for the lounge located at 24 Woodmede Way, Greenville, Greenville County, South Carolina
is granted with the following restrictions, upon the applicant signing a written agreement to be filed
with the Department to adhere to the stipulations set forth below:
1. Applicants are to employ at all times a doorperson whose responsibility is to ascertain
the age of each potential customer and ensure no one under 21 years of age may enter unless
accompanied by a parent or unless a band is affixed to his/her wrist.
2. Applicants will utilize its doorperson and other employees to ensure no loitering,
public disturbances or consumption of beer, wine or liquor occurs in the parking areas at the location.
3. Applicant will utilize its employees daily to remove all litter and trash from all exterior
areas at the location.
4. No outside speakers will be installed or placed on the exterior of the building or
outside the building at the location which transmit sound or music.
5. Applicants will construct a fully-enclosed wooden fence a minimum of ten feet in
height on its two boundaries adjoining the pine thicket (rear and opposite from Camelot Inn) prior
to the issuance of the permit and license. Applicants are to maintain the fence and may not paint it,
but may stain it to protect it from the weather.
6. Applicants will strictly enforce their dress code.
7. Applicants will not allow any advertising of beer, wine or liquor on the exterior of the
building or at any exterior areas of the location.
8. No live entertainment or bands will be allowed to perform at the location. Employees
will patrol the exterior area of the location hourly during its operation to determine if music from the
location can be heard at the nearest residence and shall inform management to adjust the volume if
the music can be heard.
9. Applicants will ensure that the location conforms to all county codes, regulations and
ordinances.
IT IS FURTHER ORDERED that the above restrictions be prominently displayed for the
public at the location.
IT IS FURTHER ORDERED that a violation of any one of the above conditions is
considered a violation against the permit and license and may result in a fine, suspension, or
revocation.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue the
permit upon payment of the required fees and costs by the applicant.
IT IS FURTHER ORDERED that the on-premise sale and consumption ("mini-bottle")
license be granted upon applicant's compliance with the requirements of S.C. Code Ann. § 61-3-425
and upon applicant's payment of the required fees and costs.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
April ____, 1996 |
