ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code
Ann. §§ 61-9-320 and 61-5-50 (Supp. 1995) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and
Supp. 1995) for a hearing pursuant to the application of Wanda C. Fernanders, d/b/a Gold
Nuggett II, ("Applicant" or "Petitioner") for an on-premise beer and wine permit (AI 106741)
and a business sale and consumption ("mini-bottle") license (AI 106742) for the premises located
at 913 Hetty Hill Street, Gaffney, Cherokee County, South Carolina ("location").
A hearing was held on May 24, 1996, at the Spartanburg County Courthouse,
Spartanburg, 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 Sheriff Bill Blanton of the Cherokee County Sheriff's
Office, Mr. S. Bernard Smith, a city of Gaffney city councilman who lives approximately 1000
feet from the location and Mrs. Sadie Haney, an adjacent 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 are denied.
EXHIBITS
Those certified copies of documents forwarded to the Administrative Law Judge Division
from the Department's file were made a part of the record.
Various other exhibits were entered into the record at the hearing by Petitioner and
Protestants.
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 a business sale
and consumption license for a restaurant/lounge located at 913 Hetty Hill Street, Gaffney,
Cherokee County, South Carolina which will be called "Gold Nugget II."
4. The applicant is thirty-three (33) years of age and has been a resident of Cherokee
County for over seven years.
5. The applicant has never 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 Gaffney Ledger, 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. Applicant is of good moral character and has no record of any criminal
convictions. She is a licensed practical nurse and worked at the Spartanburg Regional Hospital
for over seven years. Presently she is a home health care nurse; pursuant to the contract with her
employer, she schedules visits with patients at her convenience. Applicant's husband, Romain
Fernanders, Jr., is a retired railroad conductor, is 45 years of age, and has been involved in the
nightclub business for the last 17 years. He is also of good moral character.
9. Applicant and her husband purchased the proposed location and are the only
investors in this proposed restaurant/lounge operation. They intend to have a hands-on
management in the operation of the business. The location is not within the city limits of Gaffney.
The highway in front of the location is the dividing line between the city and county limits.
10. Applicant intends to operate the restaurant/lounge from 10:00 a.m. to 10:00 p.m.,
Monday through Thursday, and from 10:00 a.m. to 4:00 a.m. on Friday. Applicant intends to
serve lunch and dinner. On Saturday applicant intends to close the location at 2:00 a.m.
11. The applicant has held an on-premise beer and wine permit and business sale and
consumption license for a location called "Gold Nugget" at 1219 N. Logan Street, Gaffney,
Cherokee County, South Carolina since 1992.
12. The proposed location is not within 500 feet of any school, or church. However, a
church is located approximately one block in distance from the location and a ball park is located
across the street from the location. A licensed day care center is located approximately fifty feet
behind the location.
13. Mrs. Sadie Haney, a forty year old widow whose husband died in 1994, owns the
house and lot immediately to the east of the location. Her property is separated by a four or five
foot high chain link fence as shown on exhibits in the file. Mrs. Haney, a Protestant to the beer
and wine permit and sale and consumption license renewal applications in 1992 and to these
applications, lives on her property with her four children, who are aged four, six, eight, and
fifteen. She is employed with Crown Central Petroleum Company at a convenience store in
Chesnee as the first shift manager. She has lived at this location since 1978. The location is at the
most several feet off the boundary line with Mrs. Haney's property.
14. Applicant and her husband, Romain Fernanders, Jr., will only allow the admittance
of customers at their club/restaurant who are at least thirty years of age or older. Further, they
will provide security by hiring security guards from Eagle Security in Spartanburg, South Carolina
who will patrol and prevent loitering on the outside and patrol the inside. Presently they utilize
security guards from this company at their other location on Logan Street. Complaints have been
filed with the Cherokee County Sheriff's Office about applicant's and her husband's operation
and customers at their other location on Logan Street.
15. Although the proposed location is in a predominately residential area, a video store
and a convenience store are located several blocks away.
16. Applicant and her husband intend to operate the location as a supper club during
the evening hours. Music for dancing will be provided. A disc jockey will also be hired for the
location. However, no speakers piping music to the exterior of the building will be installed or
utilized.
17. This location was licensed prior to the filing of this application. The club was
called "Club 913" and was operated and owned by Robin L. Wilkerson . Pursuant to protests
filed by residents in the Hetty Hill Street neighborhood and the surrounding area (including Mrs.
Sadie Haney and Mr. Bernard Smith), a hearing was held at Columbia, South Carolina on April 3,
1992 by the Alcoholic Beverage Control Commission ("Commission") to determine the suitability
of the proposed location, the nature of the proposed business activity and the applicant's
eligibility. Mr. Wilkerson had previously filed applications for an on premise beer and wine permit
and a business sale and consumption (minibottle) license at this same location which had been
issued.
18. Subsequent to the hearing before the Commission, the Commission issued a letter
dated July 8, 1992 to the applicant, and copied it to one of the Protestants who testified at the
hearing, stating that the Commission, "after consideration of the testimony and evidence
presented at a hearing held June 24, 1992" approved the applications with the restriction that
applicant "erect a six (6) foot and eight (8) foot privacy fence across the back and six (6) foot
down the side of the lot where it slopes within 90 days from this date". The Commission in many
instances did not issue formal orders with findings of fact and conclusions of law, only "letters"
stating its decision with any restrictions written therein. Accordingly, this letter is assumed to be
an Order issued by the Commission. In the absence of any proof to the contrary, there is a
presumption that public officers have promptly discharged the duties of their office and have
faithfully performed those duties with which they are charged. Whitmore v. Cass, 213 S.C. 230,
49 S. E.2d 1 (1948). Administrative notice is taken of this decision by the Commission.
19. Numerous complaints were made about this location when operated as the "Club
913." Violations were written on October 18, 1992 for open containers of beer and mixed drinks
after 2:00 a. m. on Sunday morning. Again, on February 21, 1993, a violation of possession of
beer during restricted hours was written against the beer and wine permit. On May 29, 1994,
violations of selling beer and permitting the consumption of liquor during restricted hours was
written against the permit and license. Eventually the prior owner closed down the "Club 913,"
surrendering the permit and license to the Department which revoked them on December 7, 1994.
20. Under previous management, many individuals frequented the club who were not
from the area, parking alongside the highway in front of the location and adjoining residences,
creating traffic problems in the community and a danger to residents in the community. Loud
noise was allowed at the location which was also a nuisance to residents in the neighborhood.
There were many incident reports made by the Cherokee County Sheriff 's Office as a result of
complaints about the club and its operation, noise, parking by its customers on residents'
properties and the shooting of guns in the club's parking lot.
21. Crestview Village, a housing development nearby (some 200-300 yards walking
distance through residents' yards), furnished many customers to the former club.
22. Hetty Hill Street is a small two lane highway. Children frequently ride their
bicycles and play in the roadway.
23. There is known drug trafficking in the general area, including along Hetty Hill
Street.
24. A privacy fence was constructed between the location and adjoining neighbors as
ordered by the Commission in July 1992.
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 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.
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;
(c) 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. 1995) prohibits the issuance to an applicant of
a liquor license for on-premise consumption 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 where situated outside of a municipality. 8. S.C. Code Ann. § 61-3-490 provides that applicants for a license under Chapter 3,
Chapter 7, and Article 3 of Chapter 13 shall advertise 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. It further provides that notice
also must be given by displaying a sign for fifteen days at the site of the proposed business. The
sign must:
(1) state the type of license sought;
(2) tell an interested person where to protest the application;
(3) be in bold type;
(4) cover a space at least eleven inches wide and eight and one-half inches high;
(5) be posted and removed by an agent of the department.
9. 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.
10. 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).
11. In considering suitability of location, it is relevant to consider the previous history
of the location and to determine whether the testimony at a hearing in opposition to a permit
consists only of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168,
198 S.E.2d 801 (1973).
12. The trier of fact may need to consider one or more of the above factors in making
a decision as to whether a location is proper. The determination of suitability is highly factual and
is based upon the weighing and balancing of these considerations where applicable.
13. From a review of the summary of the testimony of the 1992 hearing made by staff
of the Commission, the issues and concerns raised then were as follows:
(1) the location, if granted the permit and license, would degrade property values;
(2) traffic problems exist at the location because of the narrow width of Hetty Hill
Street;
(3) the area at the location is residential in nature;
(4) children live and play in the neighborhood.
These factors have not changed. Children still live and play in the neighborhood, the area is still
residential in nature, traffic is still heavy on Hetty Street and degradation of property values could
very possibly occur if a nightclub were to be operational in the middle of the neighborhood.
However, other factors not addressed at the first hearing also must be considered to determine if
the permit and license should be granted. Additional concerns presented at the hearing before the
Court on May 24, 1996 were as follows:
(1) a licensed day care nursery is now operational some 50 feet behind the
location;
(2) although a wooden fence has been constructed, it does not enclose all of the
parking areas in front of the location and therefore is not sufficient to quell the
noise which will emanate both from live music inside the location and from
customers entering, leaving and standing around in the parking lot; further, since
the building at the location is two stories in height, it would be impossible to
construct a wooden barrier which would soften the noise;
(3) there is a ball park across the street from the location which is within the city
limits of Gaffney which attracts citizens, both old and young;
(4) a drug problem exists along Hetty Hill Street.
All of these factors warrant a thorough reexamination of the location. As stated in Palmer, the
trier of fact should consider all factors which demonstrate the impact a location will have on a
community. Thus, a reweighing of all the factors, including those previously considered in 1992,
must be reviewed in making a decision.
16. The Petitioner argues that the Protestants who testified at the 1992 hearing are
collaterally estopped from protesting this application. The doctrine of collateral estoppel requires
a showing that the issue sought to be precluded was an issue actually litigated and directly
determined in the prior action, and that the matter or fact directly in issue was necessary to
support the first judgement. Beall v. Doe, 281 S. C. 363, 315 S.E.2d 186 (Ct. App. 1984).
Further, the parties appearing at the previous hearing must have had an adequate opportunity to
litigate the disputed facts or issues. Carman v. South Carolina ABC Comm'n, ____S. C. ____,
451 S.E.2d 383 (1994); United States v. Utah Constr. and Mining Co., 384 U. S. 394, 86 S. Ct.
1545, 16 L. Ed.2d 642 (1966). In Carman, an order was issued by the Commission in 1986
granting a beer and wine permit and a sale and consumption license to Carman. In 1990 the
Commission held another hearing on applications by Carman for another beer and wine permit
and a sale and consumption license. At the first hearing, the Commission granted the permit and
license but denied the requested permit and license at the second hearing on the ground that
Carman was not of "good moral character." Since the issue of moral character was before the
Commission at the first hearing and a determination was made on it which became a part of a
valid and final judgement, the determination made by the Commission on that issue at the first
hearing was conclusive in a subsequent action between the parties, whether on the same or a
different claim.
In this case, additional issues are addressed, as stated in conclusion of law #15, which
were not litigated at the hearing in 1992. Also, the parties at the 1992 hearing are not the same
parties as those to this action. Protestants are not parties. Byers v. South Carolina ABC
Comm'n, ____S. C. ____, 316 S.E.2d 705 (S. C. App. 1984). A party is a person or agency
named or admitted as a party or properly seeking and entitled to be admitted as a party, including
a license or permit applicant. The Protestants did not seek to be admitted as parties in either the
1992 case or in the present case. ALJD Rule 2G.
Many of the issues in this case are distinct from those presented at the 1992 hearing.
Accordingly, collateral estoppel does not apply to the instant matter.
17. There was specific and credible evidence placed in the record that the location,
after its permitting and licensing to the previous owner, was a detriment to the community
wherein it is located, impacted upon the health, safety and welfare of its citizens, and was a
nuisance. Both the Cherokee County Sheriff's office, and a resident of the community who lives
next door with her four children, together with a resident of the community who is a Gaffney city
councilman provided not just opinions, conjecture or potential problems for consideration; they
provided significant concerns including testimony about specific incidents at the location, which
resulted from the operation of a nightclub in a completely residential neighborhood. All three
acknowledge that both applicant and her husband are good people who possess an honest desire
to own, manage and operate a restaurant and nightclub/supper club at the location but they fear
that such an enterprise is not feasible in this neighborhood.
18. The decision whether this location is suitable and proper for the proposed business
is factual and involves the weighing and balancing of all the factors and considerations stated
herein. Having considered all these factors and given due weight to the evidence presented, I
have concluded that the permit and license should be denied. The potential for excessive noise,
unruly behavior by patrons of the club in a residential neighborhood where many children within
close proximity live and play in their yards, the streets, the playground and at the licensed day care
center, and the necessity of protecting the safety and welfare of these residents require that such
an establishment not be located in this area. Applicant has failed to meet her burden of proof in
showing that all statutory requirements have been met by failing to convince the Court that the
location is proper for the issuance of the requested permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the applications of Wanda C. Fernanders, d/b/a Gold Nuggett II, for an
on-premise beer and wine permit and a business sale and consumption license for the premises
located 913 Hetty Hill Street, Gaffney, Cherokee County, South Carolina be denied.
AND IT IS SO ORDERED.
________________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
July 11, 1996 |
