ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge 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 Daniel M. Tollison, Sharkies Supersports, Inc., d/b/a Sharkies
Supersports ("Applicant or Petitioner") for an on-premise beer and wine permit (AI 111119) and an
on-premise sale and consumption ("mini-bottle") license (AI 111120) for the premises located at 126
Lakemont Drive, City of Anderson, Anderson County, South Carolina ("location").
A hearing was held on March 7, 1997, at the Anderson County Courthouse, Anderson, South
Carolina. The issue considered was the suitability of the proposed location.
The application was protested by Rev. Elva Martin, pastor of the Word of Truth Assembly
of God; Rev. Roger Porter, pastor of the New Wine Christian Fellowship; Rev. Russell Rice, pastor
of the Oakwood Baptist Church; Rev. Jerry Parnell, pastor of the Canaan Baptist Church; and the
Rev. Jerry Durham, pastor of the West Whitner Baptist Church. Rev. Roger Porter served as
spokesperson for the ministers. Testifying in opposition were the Rev. Dr. Russell Lee Rice and the
Rev. Elva Martin. Rev. Jerry Parnell provided a closing statement to the court. All of the churches
are in the general vicinity of the proposed location. The South Carolina Department of Revenue
("Department"), as set forth in the agency transmittal form and Motion to Be Excused, advised the
Division it would have issued the permit and license to the Petitioner as a nonprofit private club but
for the protest. The Department's Motion to Be Excused from appearing at the hearing was granted.
The application requests are granted.
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, no probative weight is given to any
"petitions" or "letters" contained in the Department's file from individuals who were not present 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 protestants.
3. The Petitioner presently holds a permit (BW 710118) and license (AI 0067549) issued
by the Department authorizing the sale and consumption of beer, wine and liquor ("mini-bottle") at
the location. Petitioner is seeking a permit and license from the Department to sell beer and wine and
liquor for on-premise consumption at the location at 126 Lakemont Drive, Anderson, Anderson
County, South Carolina as a nonprofit private club.
4. The applicant, Daniel M. Tollison, was born on August 14, 1963, and has lived in
Anderson County for a number of years. He has operated the sports bar since 1989 when he first
obtained the on-premise beer and wine permit and the on-premise and consumption ("mini-bottle")
license.
5. 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 Belton & Honea Path News-Chronicle, 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. Petitioner is of good moral character and has no record of any criminal convictions.
9. The applicant, Sharkies Supersports, Inc. has been incorporated as nonprofit
corporation for the mutual benefit of its members. Further, it has prepared By-Laws which 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.
10. The location is owned by John E. Tollison, Jr.
11. The building at the location is functional and is presently operating as a sports bar.
The building contains two other businesses besides that of Petitioner; one is a restaurant, which at
one time was operated by Petitioner and the other is a telephone communications store. Neither of
these other tenants protested this application request.
12. Sharkies Supersports is located within the City of Anderson. The highway (Lakemont
Drive, a/k/a Highway 28 Bypass) on which the location fronts is a four-lane thoroughfare. All the
properties on both sides of this highway in the general vicinity of the location are commercial in
nature. Reference is made to the sketch as prepared by the investigating South Carolina Law
Enforcement Division agent which was reviewed by the Petitioner and the protestants at the hearing.
13. There are pool tables and video machines in Sharkies Supersports presently, and
Petitioner intends to keep them. No juke box will be permitted at the location, nor will dancing be
authorized by Petitioner.
14. The churches closer to the location are the New Wine Christian Fellowship and the
Word of Truth Assembly of God. They are both across Lakemont Drive and are located in a small
strip shopping center owned by a local Anderson attorney. The Oakwood Baptist Church and the
Lakeside Middle School are approximately 4/10 (.4) mile from the location. West Market Family
Education Center, a family development center where troubled children are counseled, is located off
Dobbins Bridge Road. There is a retail liquor store located adjacent to the telephone
communications store and a Citgo service station beside it which holds an off-premise beer and wine
permit.
15. The entire general vicinity along Lakemont Drive is heavily commercialized with fast
food establishments, gas stations, convenience stores, retail liquor stores and other small businesses.
16. Petitioner intends to continue his active hands-on management at the location.
17. Live music or bands will not be permitted to perform at the location.
18. Neither the Petitioner nor any employee has ever been found to be in violation of an
ABC statute or regulation.
19. The protestants voiced several concerns at the hearing. They objected to the
location's proximity to their churches and the West Market Family Education Center. It was their
feeling that customers going to and from the location, particularly if they are under the influence of
alcohol, would create safety concerns both to citizens traveling on Lakemont Drive as well as to their
parishioners and school children. Their argument was that the traffic in the general area is increasing.
Also, they are concerned that the incidents of crime is increasing in this area and that individuals
frequenting the location would contribute to that statistic.
20. Except for the protests filed, the Department would have issued the beer and wine
permit and business sale and consumption license for the nonprofit corporation.
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 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, 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 the State 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 this State for at least thirty days before the date of application and has maintained
his principal place of abode in the 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.
7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.
8) 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. The department must determine which
newspapers meet the requirements of this section based on available circulation figures.
However, if a newspaper is published in 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. An applicant for a beer or wine permit and an alcoholic
liquor license may use the same advertisement for both if the advertisement is approved by
the department.
9) 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 permit sought;
(b) state where an interested person may 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 division.
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 which provides as follows:
The Department may issue a license under subarticle 1 of this article 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.
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, § 61-6-120 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. An applicant
for a beer and wine permit and an 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 division.
6) The applicant is twenty-one years of age or older.
7) The applicant is a legal resident of the United States, 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 this
state for at least thirty days before the date of application.
8) The applicant has not been convicted of a felony within ten years of the date of application.
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). 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, 278
S.C. 593, 281 S.E.2d 118 (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 at best. No documentary evidence was presented by the protestants in support
of their concerns, and none 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 residents,
parishioners at the churches or those who attended the church and family education center schools.
Although there had been two break-ins at one of the churches nearby, there was no evidence that the
proposed change from a sports bar open to the general public to a private club limited to members
over the age of 21 years would contribute to this concern or any of the other concerns expressed by
the ministers. There was no evidence that Mr. Tollison was operating a club which had been a
constant source of problems for law enforcement or citizens in the general area.
11. 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 complied with those
requirements in both its Articles of Incorporation and its By-Laws.
12. S.C. Code Ann. § 61-6-1600 provides as follows:
Nonprofit organizations which are licensed by the department under this article may sell
alcoholic liquors in mini-bottles. Members or guests of members of these organizations may
consume alcoholic liquors sold in mini-bottles upon the premises between the hours of ten
o'clock in the morning and two o'clock the following morning.
13. S. C. Code § 61-4-540 (Supp. 1996) states that upon a determination that an applicant
met the requisite qualifications and conditions, is a fit person and the proposed place of business is
a proper one, the department must issue the permit after payment of the fee as required by law.
14. 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.
15. 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).
16. Standards for judging the suitablity of a proposed location for the sale of beer, wine
or liquor are not determined by a local community's religious convictions. Criteria must be uniform,
objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful
enterprise in South Carolina, as regulated by the State.
17. 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. § 61-6-1830
(Supp. 1996).
18. S.C. Ann. § 61-2-160 (Supp. 1996) prohibits the issuance, renewal or transfer of a
permit or license under Title 61 if the applicant owes state or federal government delinquent taxes,
penalties or interest.
19. I conclude that the applicant has met his burden of proof in showing that he meets all
of the statutory requirements for holding a retail beer and wine permit and a sale and consumption
("mini-bottle") license as a nonprofit corporation at its location on Lakemont Road in Anderson,
South Carolina. 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 application of Daniel M. Tollison, Sharkies Supersports, Inc., d/b/a
Sharkies Supersports for an on-premise beer and wine permit and a business sale and consumption
(mini-bottle) license as a nonprofit corporation at its location at 126 Lakemont Drive, Anderson,
Anderson County, South Carolina is granted, and
IT IS FURTHER ORDERED that the Department of Revenue issue the permit and the on-premise sale and consumption ("mini-bottle") license upon applicant's compliance with the
requirements of S.C. Code Ann. § 61-2-160 (Supp. 1996) and upon applicant's payment of the
required fees and costs.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 31, 1997 |
