ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code
Ann. §§ 1-23-310, et seq. (1986 & Supp. 1995) regarding a protested renewal application for an
on-premises beer and wine permit for an establishment known as Players Cafe, located at 2011
Leesburg Road, Columbia, South Carolina. Permittee Sun K. Dukes requested a contested case
hearing upon the filing of written protests by James and Jean Maxwell and Nancy and Robert
Shirey to the renewal of her permit on the ground that the licensed location is unsuitable. The
South Carolina Department of Revenue (hereinafter referred to as "DOR") transmitted the case to
the Administrative Law Judge Division for a hearing, which was held on November 20, 1996.
Upon motion granted, DOR was excused from appearing at the hearing. Based upon the relevant
and probative evidence and the applicable law, the permit renewal is denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
- Sun K. Dukes seeks renewal of an on-premises beer and wine permit for a location at 2011
Leesburg Road, Columbia, South Carolina, having filed a renewal application with DOR for
permit BW #643082.
- Petitioner first applied for an on-premises beer and wine permit and minibottle license for the
proposed location in 1994, which were protested by nearby residents, resulting in a contested
case hearing before an administrative law judge. Petitioner subsequently withdrew those
applications on July 7, 1994, following the contested case hearing before an administrative law
judge, but before a decision on the merits was issued by the judge.
- After withdrawal of the above applications, Petitioner submitted a new application for an
on-premises beer and wine permit only. That application was not protested, and DOR issued
Permit BW #643082 to Petitioner in March, 1995.
- The proposed location is located in a mixed residential and commercial area of Richland
County near Fort Jackson, on Leesburg Road, near its intersections with Beckley Drive and
Twin Lakes Road.
- Leesburg Road is a busy and congested thoroughfare which widens from two to four lanes
near the proposed location.
- The proposed location is currently operating as a bar and grill preparing and selling hot food
and serving beverages for on-premises consumption. The location also has a juke box, pool
tables, and video games for the enjoyment of patrons.
- The hours of operation of the proposed location are 10:00 a.m. to 11:30 p.m.
- The establishment averages about 100 patrons per day.
- The proposed location has been a commercial site for approximately thirty years, and has been
previously licensed to sell beer and wine under former owners.
- Prior to Petitioner's management, the proposed location was operated as Players Cafe by Sam
Sharpe for approximately two years, without a beer and wine permit.
- Prior to operation as Players Cafe, the proposed location previously was operated as Holstein's
German Restaurant, with an on-premises beer and wine permit.
- Before it was Holstein's, the proposed location previously was operated as a convenience store
with an off-premises beer and wine permit.
- The vacant commercial structure, next door to the proposed location at 2009 Leesburg Road,
is zoned for a day care and currently has a sign out front that reads "M & M Day Care."
- Other non-residential establishments in the immediate vicinity include Crescent Mini Builders,
Forest Acres Masonic Lodge, and the vacant Twin Lakes Private Club.
- Several residences are located in close proximity to the proposed location.
- Protestants Nancy and Robert Shirey reside at 1956 Beckley Drive, across Leesburg Road
from the proposed location.
- The Shireys have resided at 1956 Beckley Drive since approximately 1946.
- Protestants James and Jean Maxwell reside at 2019 Leesburg Road, next door to the proposed
location. The Maxwell's house is approximately 73 feet from the front door of the proposed
location. The proposed location and the Maxwell home are separated in part by a concrete
block wall, chain link fence, and shrubs.
- The Maxwells have resided at their current address for approximately 34 years.
- Neither the Shireys nor the Maxwells experienced any problems with or had objections to the
operation of the proposed location until the Petitioner was issued her current permit.
- Since the issuance of the beer and wine permit to Petitioner in March, 1995, the Maxwells
have called law enforcement at least eleven different times to respond to disruptive activities at
the proposed location.
- On numerous occasions since the issuance of the beer and wine permit to Petitioner, patrons
have gathered in the parking lot drinking, using profanity, and creating excessive noise.
- Since the issuance of the beer and wine permit to Petitioner, Mr. Maxwell has routinely
observed patrons of the proposed location urinating outside the establishment in view of his
home.
- On November 18, 1995, a shooting incident took place at the proposed location involving a
drunken patron who was forcibly removed from the premises. The patron fired several shots,
resulting in property damage, but no injury. The police responded to calls from an employee
of the establishment and nearby residents.
- On November 1, 1996, at approximately 9:45 p.m., Mr. Maxwell observed from his home two
persons engaged in oral sex on the outside premises of the proposed location.
- Because of persons under the influence of alcohol, residents of the area fear for the safety of
themselves and others.
- The applicant is over twenty-one years of age, is a resident of the State of South Carolina, and
has maintained her principal residence in South Carolina for more than thirty (30) days.
- Petitioner has not had a permit revoked in the last two years.
- Petitioner has not been cited for any ABC violations while licensed.
- Since the issuance of the beer and wine permit to Petitioner in March, 1995, Petitioner was
arrested and convicted for Driving Under the Influence.
- Notice of the time, date, place, and subject matter of the hearing was given to the applicant,
protestants, and DOR.
- Testifying in support of the renewal were Petitioner Sun K. Dukes, part-time employees Zack
Burriss and Margaret Thomas, and patrons John McLean and Willis Badcock. Several other
persons in attendance at the hearing did not testify but indicated that they supported the permit
renewal.
- Testifying in opposition to the application were protestants and neighbors James Maxwell and
Nancy Shirey, and nearby residents Charles Woodhurst and John Dast. Several other persons
in attendance at the hearing did not testify but indicated that they opposed the permit renewal.
- The disruptive activities which routinely occur on the outside of the licensed premises are a
direct result of the sale and consumption of beer and wine and the business practices of
Petitioner.
- Because Petitioner is unwilling or unable to control patrons on the outside of the licensed
premises, the proposed location is unsuitable to hold an on-premises beer and wine permit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- The South Carolina Administrative Law Judge Division is empowered to hear this case
pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title I of the 1976
Code, as amended.
- S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met before issuance or
renewal of a beer and wine permit.
- 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 Commission,281 S.C.
566, 316 S.E.2d 705 (S.C. App. 1984).
- Constant problems which require police attention and create an adverse impact upon the
neighboring residential neighborhood are grounds to deny a beer and wine permit. Palmer v.
S.C. A.B.C. Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
- The close proximity of residences to the proposed location is an adequate basis to deny a beer
and wine permit. Schudel v. S.C. A.B.C. Commission, 276 S.C. 138, 276 S.E.2d 308 (1981)
Palmer v. S.C. A.B.C. Commission, supra (nearest residence approximately 72 feet from
proposed location).
- Noise and inconvenience to nearby residents may be a factor in denying a permit. Kearney v.
Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
- Although beer and wine have been sold at the same location by former owners without an
adverse impact upon the area, there is overwhelming evidence that the business practices of
Petitioner in the operation of the location has resulted in an adverse impact upon the
surrounding neighborhood. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
- Because of the noise, inconvenience to nearby residents, constant problems which require
police attention, and adverse impact created by the business practices of the Petitioner, the
proposed location is not suitable for the continued sale of beer and wine. Accordingly, the
renewal of the current permit must be denied.
ORDER
IT IS THEREFORE ORDERED that the renewal of on-premises beer and wine permit BW
#643082 is denied.
IT IS FURTHER ORDERED that the terms of this Order are effective January 1, 1997.
AND IT IS SO ORDERED.
_______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
December 13, 1996
Columbia, South Carolina |