SC Administrative Law Court Decisions

The Petitioner, Stephen D. Mondovich (Mondovich) of Summerville, South Carolina, filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit and a sale and consumption license for 1104 Beacon Bridge Road, Summerville, South Carolina. Protests were filed by members of the community seeking to prevent DOR from granting the license. A hearing on the application was required since "[n]o application for [a] beer and wine permit will be approved by the Alcohol Beverage Control Commission [now DOR] unless a hearing is held in the matter when the issuance of the permit is protested by one or more persons." 23 S.C. Code Regs. 7-90 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing required by Regs. 7-90 (Supp. 1995). As to mini-bottles, the same rule applies under S.C. Code Regs. 7-3 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing required by Regs. 7-90 and 7-3, with such hearing held under the contested case provisions of S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1995).

After considering all of the evidence and relevant factors, the permit and license is granted with restrictions. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).

Do Mondovich and the corporation meet the statutory requirements of S. C. Code Ann. §§ 61-9-320 and 61-5-50 (Supp. 1995) for an on-premises beer and wine permit and a mini-bottle license for a private club?

III. Analysis

1. Positions of Parties:

Mondovich asserts he and the corporation, Mingles Social Club, Inc., meet all the requirements of the statute. DOR states that due to the protest, no permit could be granted and it awaits the outcome of this hearing. The protestants assert only one basis for denial of the permit: the proposed location is not proper.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. Mondovich filed an application with the Department of Revenue for an on-premises beer and wine permit and a mini-bottle license as a nonprofit private club.

2. The applications are identified by DOR as AI 107230 and AI 107231.

3. The proposed location of the business and the place where the beer and wine permit and the mini-bottle license will be utilized is 1104 Beacon Bridge Road, Summerville, South Carolina.

4. The nature of the business is that of a private club doing business as Bikini Joe's.

5. Protests to the application were filed by members of the community.

6. Except for the unresolved issue of suitability of location, DOR would have issued the permit and license.

7. The hearing on this matter was held May 10, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Moral Character

8. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.

9. The SLED report revealed no criminal violations.

10. The applicant has not engaged in acts or conduct that imply the absence of good moral character.

11. The applicant is of good moral character.

12. The corporation, Mingles Social Club, Inc. was established in October 1990, with Isiah N. Thompson as President.

13. Mondovich is now President of Mingles Social Club, Inc.

14. The applicant as an individual and as a principal of the corporation is of good moral character.

c. Reputation For Peace and Good Order In The Community

15. The corporation, Mingles Social Club, Inc. was established in October 1990.

16. The corporation has not created a lack of peace nor created disorder in the community.

17. The reputation of Mingles Social Club, Inc. is one of peace and good order in the Summerville community.

d. Legal Resident and Principal Place of Abode

18. Mondovich has resided in South Carolina since 1990.

19. Mondovich holds a valid South Carolina driver's license.

20. Mondovich currently resides at 312 B Kentucky Drive, Ladson, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

21. Mondovich is both a legal resident of the United States and South Carolina and held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

e. Prior Revocation Of Beer or Wine Permit

22. Mondovich has never been issued a beer and wine permit and has never had a beer and wine permit revoked.

f. Age

23. Mondovich's date of birth is December 27, 1963.

24. Mondovich is over twenty-one years of age.

g. Proposed Location

25. Until approximately two years ago, a prior owner of the existing location operated with an on-premises beer and wine permit and mini-bottle license.

26. During the time of the prior ownership the Sheriff's office had received calls due to intoxication of patrons, reports of patrons urinating in the parking lot, and on one occasion investigated an assault and battery with intent to kill.

27. During the time of the prior ownership, patrons from the club trespassed on property of owners of residences in the area.

28. The applicant will operate a sports club similar to the activity of the prior owner and will provide short-order food such as hamburgers and hot dogs.

29. The proposed location intends to have ten to fifteen televisions in the facility showing sports programming.

30. The facility will be open seven days a week.

31. While the area has significant commercial activity there are also residences in the vicinity.

32. The area along Beacon Bridge Road is a mixture of commercial and residential with such mixture resulting from a transition from residential to commercial use.

33. At least one off-premises beer and wine permit is in operation in the area with such permit utilized at Jack's Grocery across the street from the proposed location.

34. There is no evidence of any mini-bottle licenses in the vicinity.

35. The proposed location fronts on Beacon Bridge Road which traffic artery is a major highway to Summerville.

36. Statesville United Methodist Church is 1500 feet distance from the proposed location.

37. Statesville United Methodist Church did not file a protest.

38. The Gazebo Day Care Center is approximately 1250 feet from the proposed location.

39. The Gazebo Day Care Center did not file a protest.

40. The proposed location is partially surrounded on three sides by a wooden privacy fence in need of repair.

41. One side of the property also has a chain link fence.

42. There are three residences to the immediate west of the location.

43. Also to the immediate west of the proposed location is a mobile home park consisting of ten occupied mobile homes.

44. Behind the proposed location and separated by some degree of vegetation and timber is a larger mobile home park with approximately thirty five to seventy mobile homes.

h. Notice

45. Notice of the Mondovich application was published in the The Post and Courier, a newspaper published and distributed in Charleston County, with notice published on January 11, 18, and 25, 1995.

46. Notice of the Mondovich application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Summerville.

47. Mondovich gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.

48. Mondovich gave notice of the application by way of required advertising by newspaper and display of signs.

3. Discussion

a. General Criteria

There is no factual dispute in this matter as to the applicant's satisfying the requirements of good moral character, the reputation of Mingles Social Club, Inc., being one for peace and good order in the community, being a legal resident of South Carolina for 30 days, having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine permit revoked within two years of the date of the current application, or being at least twenty-one years of age. Rather, the issue is whether the proposed location is a proper one.

Under S.C. Code Ann. § 61-9-320 (Supp. 1995), no beer and wine permit may be granted unless the location of the place of business is a proper location. Additionally, in granting a mini-bottle license it is proper to consider the suitability of the location. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

While not all inclusive, numerous factors regarding proper location have been considered by the courts. The proximity of the location to residences, churches, schools, and playgrounds is a proper consideration. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). The impact of the proposed location upon traffic in the area can be a consideration. Palmer, 317 S.E.2d at 478. The character of the entire area as rural versus commercial may be considered. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is relevant whether there are already similar existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Further, objections to the permit must be based upon adequate factual support. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

b. Basis For Decision on Improper Location

The purpose of the above discussion is to demonstrate that the decision of whether a proposed location is proper is highly factual and is based upon the weighing and balancing of numerous considerations. I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing.

The permit and license are granted with restrictions. The area is a transitional area with significant commercial activity already present on Beacon Bridge Road. Further, while there is no evidence of any mini-bottle licenses in the area, there is an off-premises beer and wine permit in the neighborhood. Such factors weigh in favor of granting the applications so long as potential problems can be overcome. There are long-time residents in the area whose proximity does not necessarily dictate denial of the application but whose presence does provide some reason for concern for their ability to enjoy the use of their property. Considering all factors, it is appropriate to impose restrictions. The granting of a beer and wine permit and the granting of a min-bottle license is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976).

I cannot emphasize enough to Mondovich the importance of strictly adhering to the restrictions. Were it not for my belief that the restrictions are capable of alleviating the potential problems that may be associated with this location, I would order the applications denied due to the possible impact upon residences in the area. However, considering all factors, I conclude the permit and license with restrictions will prevent a negative impact upon the residents. Mondovich should note that a violation of any of the restrictions is a ground for revocation, fines or both. Further, it is my expectation that DOR and SLED will be diligent in monitoring the permit and license to ensure compliance with the restrictions.

The evidence demonstrates the prior operator of the proposed location was successful in alienating the residences of the area. Further, the prior operator drew the attention of the Sheriff due to reports of intoxication, loud music, urination in the parking lot, trespass on the property of neighbors, and even a case of assault and battery with intent to kill. The sins of prior operators, however, should not be visited upon a new applicant if there is reason to believe the prior sins will cease. There is no indication that the area is a haven for crime. Rather, the past problems resulted from the poor management practices of the prior operator. It is the intention of these restrictions to prevent the problems encountered during the operation by prior owners. Accordingly, the permit and license is granted but with the restrictions as stated in the Order section below.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant operates a bona fide nonprofit organization. S.C. Code Ann. § 61-5-50(1) (Supp. 1995).

2. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995); S.C. Code Ann. § 61-5-50(2) (Supp. 1995).

3. The corporation has a reputation for peace and good order in the community. S.C. Code Ann. § 61-5-50(2) (Supp. 1995).

4. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995); S.C. Code Ann. § 61-5-50(7) (Supp. 1995).

5. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).

6. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995); S.C. Code Ann. § 61-5-50(6) (Supp. 1995).

7. With restrictions, the applicant's location is suitable and is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

8. Consideration must be given to whether the granting of the permit and license will have an adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9. The proximity of the location to residences is a proper consideration. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

10. The existence or lack of existence of other similar businesses in the area is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

11. The presence of loud music combined with proximity to residences is a factor in denying a permit or license. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

12. Whether the proposed location creates a traffic danger is a valid consideration in granting a permit or license. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

13. Law enforcement considerations are valid considerations in granting a permit or license. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

14. Considering all relevant factors, the proposed location with restrictions is a proper location for a beer and wine permit or for a mini-bottle license. S.C. Code Ann. § 61-9-320(6) (Supp. 1995); S.C. Code Ann. § 61-5-50(3) (Supp. 1995).

15. The granting of a beer and wine permit and the granting of a min-bottle license is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943).

16. Permits and licenses are authorized by statute and regulation to be issued by DOR with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976).

17. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995); S.C. Code Ann. § 61-5-50(4) and (5) (Supp. 1995).

18. With restrictions, the applicant meets the requirements for the issuance of a mini-bottle license pursuant to S.C. Code Ann. § 61-5-50 (Supp. 1995).

19. With restrictions, the applicant meets the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).

DOR is ordered to grant Mondovich's application for an on-premises beer and wine permit and a sale and consumption license at 1104 Beacon Bridge Road, Summerville, South Carolina upon Mondovich signing an agreement with DOR to adhere to the following restrictions:

1. There shall be no live music at any place within the building or on any portion of the property.

2. No sound emanating from the building shall be audible at a distance of 200 feet from the building.

3. For all hours in which the location is open, at least one licensed, uniformed security officer must be visibly patrolling the premises both in the parking area and inside the building.

4. The parking area shall be lighted by adding at least three additional lights of the same height as the current light pole on the property with the new lights being 175 watt mercury vapor bulbs producing a light intensity of at least 9,500 lumens. All lights must be on at sundown and remain on until closing.

5. The wooden fence currently on the property shall surround the property on three sides, shall be made structurally sound and shall have no breaks or openings in its entire length.

6. Mondovich must place a sign in a conspicuous location inside his building with such sign stating in bold print, "Bathroom facilities available for all members and guests." The sign shall be no smaller than twelve inches by twelve inches with the message on the sign covering a space of eleven inches by eleven inches.

DOR shall not issue any permit or license until all necessary additions and changes to the property required by the above restrictions are accomplished.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 29th day of May, 1996.