ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("Division") pursuant to
S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp.
1996) for a hearing pursuant to the application of Tracy Jennings, President, Westgate Sports Club(1)
("Applicant" or "Petitioner") for an on-premise beer and wine permit (AI 108460) and an on-premise
sale and consumption ("mini-bottle") license (AI 108461) for the premises located at 620 W.
Blackstock Road, Spartanburg, Spartanburg County, South Carolina ("location").
A hearing was held on April 14, 1997 at the offices of the Division in Columbia, South
Carolina after notice to the parties and the sole Protestant, the Spartanburg County Sheriff's Office
("Protestant"). The application was protested on the issue of suitability of location and character of
the applicants. Also, the application was denied by the South Carolina Department of Revenue
("Department) based upon violations written at the location for sales of alcoholic beverages to
persons under the age of twenty one (21)years while operated by and licensed to William R. Bouye,
the fiancé of the applicant. Sergeant John Lyles and Officer Randy Hollifield testified for the
Protestant in opposition to the permit and license.
The application requests are denied.
EXHIBITS
Those certified copies of documents forwarded to the Division from the Department were
made a part of the record. However, no probative weight is given to any petitions, letters, or
memorandums contained in the Department's file containing opinions or comments by individuals
not present at the hearing. Various other exhibits were placed into the record by both parties at the
hearing.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the parties or protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and subject matter of the hearing was timely given to
all parties and the protestant.
3. The applicant is seeking an on-premise beer and wine permit and a club sale and
consumption ("mini-bottle") license for the premises located at 620 West Blackstock Road,
Spartanburg County, South Carolina, as a non-profit private social club. Presently, the portion of
the building at the location for which this permit and license are applied for is licensed for an on-premise beer and wine permit and a club sale and consumption ("mini-bottle") license to the fiancé
of Petitioner, William R. "Dickey" Bouye. He operates a night club at the location under the name
of O'Sullivan's which is a top 40 dance club. The club's patrons are aged 18 and up. There is no
live entertainment at O'Sullivan's.
4. The applicant was born on February 22, 1972. She is 25 years of age.
5. The applicant has never had a beer and wine permit or club sale and consumption
license issued to her by the Department and has never had such a permit or license revoked.
6. Petitioner was born in Spartanburg County, South Carolina and has lived there nearly
all of her life. Presently she is enrolled in a real estate appraisal school. She is a graduate of the
Wyatt School of Real Estate.
7. Applicant has resided in and has had her principal place of abode in South Carolina
for more than 30 days prior to the filing of this application. She is a legal resident of the United
States and the State of South Carolina.
8. The State Law Enforcement Division (SLED) has completed a criminal background
investigation of the applicant. The SLED report revealed no criminal violations.
9. The applicant is of good moral character.
10. The corporation, Westgate Sports Club, was established on December 26, 1995 as
a non-profit corporation. Its Articles of Incorporation were filed with the Secretary of State's office
on January 18, 1996. William R. Bouye was listed as the only director and incorporator.
11. Westgate Sports Club was incorporated as a nonprofit corporation for the mutual
benefit of its members. Further, its By-Laws define its offices and location, the membership, the
election of its members, the voting privileges of members, the designation of meetings, the election
of the members of the Board of Directors, the election of its Officers, the visitation privileges of
guests of members and other provisions concerned with indebtedness, entertainment, finances,
amendments and the transfer of any residual assets at any dissolution.
12. A copy of the Bylaws of the Westgate Sports Club was submitted to the Department.
Under Article II, Section 2, it is provided that all members must not be less than Twelve (12) years
of age. Article II, Section 4, provides that the number of resident members is limited to 10,000 and
the number of nonresident members is limited to 10,000, also. With the exception of these two
provisions which are somewhat abnormal, the remainder of the provisions are reasonable.
13. On April 8, 1996, Dennis W. Norwood filed an application for an on-premises beer
and wine permit and a nonprofit private club mini-bottle license for the Westgate Sports Club at 620
West Blackstock Road, Spartanburg, South Carolina. The club was listed as a social club. In
answering question # 20 about "any current beer, wine, and/or liquor license at this location," Mr.
Norwood listed a beer and wine permit (BW 629527) and a liquor license (SB 629526) as having
been issued to O'Sullivan's. On the application, Mr. Norwood stated that he was applying for the
permit and license for a restaurant.
14. Notice of the application was published in the Spartanburg Herald-Journal, a
newspaper published and distributed in Spartanburg County. The notice was published on April 11,
April 18 and April 25, 1996. This notice appeared in a newspaper most likely to give notice to
interested citizens of Spartanburg County.
15. SLED gave notice of the application to the public by displaying a sign for fifteen
days (May 13-May 28, 1996) at the site of the proposed business.
16. On May 6, 1996, Old Republic Surety Company, as surety, attached a rider to the
bond given to the South Carolina Beverage Control Commission [now the South Carolina
Department of Revenue], which changed the name of the principal of Westgate Sports Club from
William R. Bouye, as President, to Dennis W. Norwood, as President.
17. The application of Dennis W. Norwood and the Westgate Sports Club was protested
by the Spartanburg County Sheriff's Office on the basis of the applicant's moral character, his
business reputation, and the location.
18. By letter dated November 15, 1996, Dennis Norwood advised the Department that
the proposed location was incorrect, as indicated by SLED agent Ron Godfrey on his sketch dated
October 14, 1996. Mr. Norwood indicated on the sketch the correct location and attached it to the
letter.
19. On December 18, 1996, the Department issued its Final Determination Letter to Ms.
Suzanne Coe, who was the attorney for the Westgate Sports Club at that time. The Department
denied the application on the basis that Mr. Norwood was of poor moral character and that the
proposed business location was a portion of the O'Sullivan's club which held a sale and
consumption license at the same address as the proposed location. Further, it determined that the
registered agent for Westgate Sports Club was William R. Bouye, who, in its determination, was not
of good moral character.
20. By letter to this court dated March 10, 1997, applicant filed a copy of the "Application
for change of person designated to hold a license or permit" which reflected that she was the new
President of the Westgate Sports Club, d/b/a O'Sullivan's.
21. On February 27, 1997, applicant filed an application with the Department, dated
February 14, 1997, wherein she sought an on-premises beer and wine permit and a nonprofit private
club mini-bottle license for O'Sullivan's Entertainment Complex, doing business under the trade
name of O'Sullivan's. Under question # 20, she listed the same beer and wine permit and liquor
license that Mr. Norwood listed on the application he filed. See Finding of Fact # 11.
22. Notice of this application by the applicant was published in the Spartanburg Herald-Journal on February 26, March 5, and March 12, 1997.
23. Applicant filed Articles of Incorporation for a nonprofit corporation entitled
O'Sullivan's Entertainment Complex with the Secretary of State's office in Columbia, South
Carolina on February 24, 1997. It provided for a social club at 620 West Blackstock Road,
Spartanburg, South Carolina.
24. The application filed by the applicant with the Department dated February 14, 1997
was withdrawn by her on March 12, 1997.
25. The night club O'Sullivan's utilizes a portion of the overall building space at the
location. Located within another portion of the building is another entertainment business known
as the Golden Nugget. The Golden Nugget is an adult entertainment nightclub, featuring topless
dancing, which is now or was formerly operated and managed by William Richard Bouye. Both
clubs operate as a part of one business venture by William R. Bouye and are accessible by their
respective patrons through a connecting doorway located in a common wall between both clubs.
26. While operating both O'Sullivans and the Golden Nugget, William R. Bouye was
arrested by the Spartanburg County Sheriff's Office and charged with violations of S.C. Code Ann.
§ 16-15-365 (Supp. 1996) which governs aiding and abetting "lewd and lascivious" conduct. The
statute reads as follows:
Any person who wilfully and knowingly exposes the private parts of his person in a lewd
and lascivious manner and in the presence of any other person, or aids or abets any such act,
or who procures another to perform such act, or any person, who as owner, manager, lessee,
director, promoter, or agent, or in any other capacity knowingly hires, leases, or permits the
land, building, or premises of which he is owner, lessee, or tenant, or over which he has
control, to be used for purposes of any such act, is guilty of a misdemeanor and, upon
conviction, must be imprisoned for not more than six months or fined not more than five
hundred dollars, or both.
Mr. Bouye was charged with two violations of this statute and was convicted on at least one of the
two charges. Mr. Bouye's conviction was upheld by the South Carolina Supreme Court in State v.
Bouye, Op. No. 24577 (filed Feb. 18, 1997).
27. Applicant was an employee of William R. Bouye, working primarily in the
O'Sullivan's or the top 40 dance club side. She was aware of the topless dancing which occurred
in the Gold Nugget side of the operation.
28. The purpose of the social club (Westgate Sports Club) as a nonprofit corporation is
to allow the sale of alcoholic beverages after midnight on Saturday evenings and on Sundays.
29. The landlord at the proposed location is Charles Yeomans, as Trustee of the Estate
of Charles L. Yeomans, Jr.
30. Applicant and Mr. William Bouye have jointly purchased a residence in Spartanburg
County. They jointly borrowed monies to purchase the residence for which they executed a note;
both the note and the mortgage, which secures it, are signed by both.
31. Applicant stipulates and agrees that there will be no topless or nude entertainment at
the Westgate Sports Club.
32. Applicant stipulates and agrees that all financial records, club books, membership
lists and bank records, including canceled checks, must be kept on the premises at all times.
33. Applicant stipulates and agrees that neither William R. Bouye nor Dennis Norwood
may come onto the premises of the proposed location, work at the premises, stand outside the
entrances of the location, have any ownership or financial interest, direct or indirect in the business,
or be involved in any way or manner.
34. Applicant stipulates and agrees that prior to the issuance of any alcoholic beverage
permit or license, the doorway between O'Sullivan's and the Gold Nugget which is located in a
common wall inside the structure of the building must be permanently filled in and sealed.
35. Applicant intends to have video machines and pool tables at the location. Further,
applicant will retain the dance floor and continue to employ a disc jockey to spin records.
36. The location is in a largely commercial area. Westgate Mall is located across the
street from this location. There are other businesses operating with beer and wine permits and liquor
licenses in the vicinity of the proposed location.
37. Neither the location nor the application was protested by any church or school. There
are no churches, schools, playgrounds, or residences in close proximity to the location.
38. There is a large call volume to the Spartanburg County Sheriff's Office at the vicinity
of the proposed location. Traffic on the roadway beside the proposed location is heavy, i.e. fifty to
sixty thousand cars a day in the area. There have been numerous traffic accidents in the area of the
proposed location. A number of individuals have been arrested at the O'Sullivan's location (location
for which Westgate Sports Club is seeking the permit and license) over the last several years. Others
have been arrested for driving under the influence after leaving the location.
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. § 61-2-260 (Supp. 1996) 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. § 61-4-520 (Supp. 1996) sets forth the requirements for the issuance
of a beer and wine permit.
3. S.C. Code Ann.§ 61-6-1820 (Supp. 1996) sets forth the requirements for the issuance
of a sale and consumption ("mini-bottle") license.
4. S.C. Code Ann. § 61-6-20 (2) and (3) (Supp. 1996), which define a bona fide business
engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging,
read in part as follows:
As used in the ABC Act, unless the context clearly requires otherwise:
(2) "Bona fide engaged primarily and substantially in the preparation and serving of meals"
means a business which has been issued a Class A restaurant license prior to issuance of a
license under Article 5 of this chapter, and in addition provides facilities for seating not less
than forty persons simultaneously at tables for the service of meals.
(3) "Furnishing lodging" means 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 § 61-6-1820 are met. In addition to the requirements contained in S.C. Code
Ann. § 61-4-520, § 61-6-1820 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 license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 1996) if
the department is of the opinion that: (1) applicant is not a suitable person to be licensed; (2) the
store or place of business to be occupied by the applicant is not a suitable place; or (3) a sufficient
number of licenses have already been issued in the State, incorporated municipality, unincorporated
municipality or other community.
7. S.C. Code Ann. § 61-6-120 (Supp. 1996) prohibits the issuance 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 situated within a municipality or within five-hundred feet (500')
of any 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, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). The trier of fact
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 the 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, 278
S.C. 593, 281 S.E.2d 118 (1981). The determination of the 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 also relevant to consider the previous
history of the location and to determine whether the testimony in opposition to the issuance of a
permit consists solely of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261
S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the officers of the Spartanburg
County Sheriff's Office consisted of evidence of various arrests both at the location and of
individuals after leaving the location. Further, it is apparent that the traffic at the vicinity of the
location is very heavy, being impacted by the Westgate Mall which was just recently enlarged. There
are other locations in the general vicinity which sell beer, wine and liquor for on-premise
consumption.
In addition, this tribunal is concerned with the manner with which this application has been
submitted. First, it was submitted by Mr. Bouye, as the President of Westgate Sports Club. Because
of his criminal convictions, the applicant was changed to Dennis Norwood, as President. Mr.
Norwood had previously served in the employment of Mr. Bouye in operating both O'Sullivans and
the Golden Nugget. When that application drew a protest from the Spartanburg County Sheriff's
Office, the applicant herein was substituted as the President and applicant.
It is clear that there are numerous concerns of law enforcement. The primary issue is that of
maintaining the safety and well-being of the citizens of Spartanburg County in this general area.
Public safety is compromised when individuals under the influence of alcoholic beverages drive
away from licensed or permitted premises onto public highways. This tribunal is also concerned that
applicant intends to allow individuals between the ages 18 years and 21 (although the Bylaws says
individuals aged 12 or older are eligible for membership) to patronize the club. The temptation for
individuals of such a youthful age to drink alcoholic beverages would be great and could lead to
serious consequences, both for them and the general public.
11. The testimony of the Spartanburg County Sheriff's Office indicates that traffic
problems have increased substantially in recent years. Traffic issues may be considered in granting
or denying a permit or license. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
12. An important factor is whether the location has operated under a permit or license in
the recent past and whether the location is now more or less suitable than it was in the past. Taylor
v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). The increase in traffic problems and alcohol-related crimes indicates that the proposed location is less suitable now than it was when originally
permitted 15 years ago. Even with the stipulations made by applicant regarding the operation of the
business, the concerns raised by law enforcement weigh heavily against granting either a beer and
wine permit or a sale and consumption license.
13. S. C. Code Reg. 7-17, entitled "Sale and Consumption at Nonprofit Organizations"
sets forth the requirements which must be met to obtain a license. Petitioner has generally complied
with those requirements in both its Articles of Incorporation and its By-Laws. However, this tribunal
is concerned and troubled with the two provisions which allow individuals 12 years of age or older
to become members and the large number of memberships available at the location.
Notwithstanding this concern, this tribunal denies this application based solely upon the law
enforcement concerns and traffic problems described by the Protestant.
15. I conclude that the proposed location is not a proper one for granting the permit and
license, given the location's recent history of traffic problems and because of law enforcement
concerns.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Tracy Jennings, President, Westgate Sports Club, for an
on-premise beer and wine permit and a business sale and consumption (mini-bottle) license as a
nonprofit corporation located at 620 W. Blackstock Road, Spartanburg, Spartanburg County, South
Carolina, is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
May 20, 1997
1. Previously, the Petitioner in this matter was Dennis W. Norwood, President, Westgate
Sports Club. He succeeded William R. Bouye as the President of the Westgate Sports Club. |