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 Alvin M. Jeffries d/b/a Jerline Lounge
("Applicant" or "Petitioner") for an on-premises beer and wine permit (AI 108744) and a business
sale and consumption ("minibottle") license (AI 108745) for the premises located at 912 White
Horse Road, Greenville, Greenville County, South Carolina ("location").
A hearing was held on July 24, 1997, at the Administrative Law Judge Division offices,
Edgar A. Brown Building, Columbia, South Carolina. The issues considered were 1) the suitability
of the proposed location; 2) whether Petitioner is the true and sole owner of the proposed business;
and 3) whether or not the proposed business is primarily and substantially engaged in the preparation
and serving of meals.
The application was protested by the West Gantt Baptist Church, Rev. Sherwood Evans and
Rev. Martha Evans of the Buried Treasure Ministries ("Church") and the Greenville County
Sheriff's office. Attending the hearing and testifying in opposition to the grant of the permit and
license were Rev. Sherwood Evans and Rev. Martha Evans, Greenville County Deputy Sheriff
Joseph E. Garner and Bishop Alvin Green of the World Harvest Ministries in Columbia, South
Carolina. The South Carolina Department of Revenue ("Department") also appeared at the hearing
objecting to the issuance to the permit and license.
After review of the relevant and probative evidence and applicable law, the applications for
the on-premises beer and wine permit and the business sale and consumption ("minibottle") license
are denied.
EXHIBITS
Those certified copies of documents forwarded to the Administrative Law Judge Division
file from the Department were made a part of the record.
Petitioner placed into the record the following: (1) a certificate of occupancy from the
Greenville County Department of Building Standards, (2) copy of the lease agreement between
Petitioner and Collins Entertainment Corporation, and (3) an inspection report from the Bureau of
Environmental Health, Division of Food Protection of the South Carolina Department of Health and
Environmental Control.
The Respondent placed into the record at the hearing the following: (1) a letter from the
Petitioner addressed to the Respondent dated February 24, 1997 and (2) a sketch of the general area
and the location.
The protestants placed into the record the following: (1) seven pictures showing the exterior
of the location; (2) several brochures; (3) a letter from 1st Choice Mortgage/Equity Corp. of
Greenville, South Carolina dated July 2, 1997 ("letter"); and (4) a number of incident reports at the
location from the Greenville County Sheriff's Department covering the period from March 1, 1996
through March 1, 1997.
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 filed an application with the Department on April 30, 1996 requesting
the issuance of an on-premises beer and wine permit (AI 108744) and a business sale and
consumption ("minibottle") license (AI 108745) for a nightclub called the Jerline Lounge located
at 912 White Horse Road, Greenville, Greenville County, South Carolina.
4. Petitioner signed a written lease on the location premises and a video game terminal
coin machine lease agreement with Collins Entertainment Corp. on April 4, 1996 ("lease").
The lease agreement for the building is month to month with rental payments of $125.00 weekly.
5. The real property ("location") is in the process of being sold during the summer of
1997 to the protestant, Buried Treasures Ministries. A loan with 1st Choice Mortgage/Equity Corp.
had been approved for the purchase as of the date of the hearing.
6. The location fronts on White Horse Road and is in a mixed commercial/residential
area. There are six churches located within a mile and a half radius of the location. The Buried
Treasure Ministries church is located approximately one hundred and three feet (103') from the
location. Sirrine Elementary School is located slightly more than a mile from the location. A large
housing project where many children live is located on the other side of the Chat and Chew club.
7. On the opposite side of the location is a nightclub/restaurant called the Chat and
Chew. On some nights it has a live band planning music for its customers. An on-premises beer and
wine permit and a business sale and consumption ("minibottle") license has been issued to that
business.
8. A convenience store which is located in one side of the building in which the Buried
Treasure Ministries is housed has a permit for the sale of beer and wine for off-premises
consumption. One sign on the exterior states that its name is the JJJ Food Mart; another states that
it is the E & S One Stop. See Protestant Exhibit 2-D.
9. Petitioner, Alvin M. Jeffries, was born on May 30, 1946, is 51 years of age and has
lived for the last 12 years at 6 Heathrow Road, Greenville, South Carolina. His home is
approximately four miles away from the location. He is a resident and citizen of the state of South
Carolina and the United States and has been for more than thirty (30) days prior to the filing of the
application.
10. Petitioner has been employed for the last ten (10) years with Roadway Express as a
truck driver. The job requires him to be away from home several nights a week. Petitioner intends
to continue with his employment at Roadway Express.
11. Petitioner is of good moral character. The criminal history report reflects no criminal
charges. Petitioner has never had a permit or license revoked.
12. Petitioner is married and all his children are of age and are married. His wife, Jerline
Jeffries, aged 50, will be in charge of the daily operation of the club/restaurant. Although the
Petitioner has no knowledge of ABC laws and regulations, his wife has been employed as a waitress
and bartender at nightclubs for approximately twenty (20) years.
13. Notice of the application appeared in The Greenville News, a newspaper of general
circulation in the area of the proposed location for three consecutive weeks and was posted at the
proposed location for fifteen days by a South Carolina Law Enforcement Division agent.
14. The building at the location contains approximately 1500 square feet and can seat
approximately 40 people. Petitioner intends to operate it with his wife as a game room/club and
restaurant. Nichee Goodwin has no interest in the business and did not appear at the hearing.
15. Petitioner and his wife opened the location in August 1996. They sell mostly chicken
wings, hot dogs and hamburgers. There is no printed menu at the location. Petitioner may enlarge
the menu to a full course meal in the future. The sister of petitioner's wife presently helps with any
cooking and will assist in the future.
16. Presently the hours of operation at the location are from 6:00 p.m. until midnight
daily. Recently the business has not been open daily due to work going on inside.
17. There are two pool tables and a jukebox located inside the game room/club. There
are no video game machines at the location. Petitioner has no live music at the location.
18. If the permit and license are granted, Petitioner intends to hire a bartender, waitress
and a doorman to assist him, his wife and his wife's sister in the operation of the club.
19. Approximately eight (8) cars can park at the front of the location and another nine (9)
cars can park alongside the building.
20. Petitioner was operating at the location prior to Buried Treasure Ministries moving
into the building next door.
21. Four or five murders have taken place in the general area surrounding the location
within the last two to three years. At least one administrative violation has been written against the
JJJ Food Mart next to the Church for permitting the purchase of beer by an individual under twenty-one years of age. The Mustang Lounge was operated as a restaurant and lounge by Anita Wallace
Thomason at the same location from July 1987 until July 1991. The location has housed the
Mustang Lounge under different ownership since the early 1970's with the owner/operator holding
an on-premises beer and wine permit and a business sale and consumption ("minibottle") license.
22. Administrative violations were made against the previous permit and license on
January 22, 1991 for failing to maintain restaurant requirements (sufficient seating) and for
permitting gambling.
23. From November 10, 1991 until November 30, 1995 Anita W. Thomason operated at
the same location as a private club under the name of the Mustang Social Club. Four protests
against Thomason's application were filed, alleging drugs and high crime in the community, but no
one appeared at the scheduled hearing to testify against the issuance of the permit and license.
24. Numerous individuals have signed petitions against the grant or issuance of the permit
and license requested by the Petitioner. Some of the petitions were signed by people at the West
Gantt First Baptist Church on Sunday, June 9, 1996. This church is located at 1452 White Horse
Road, Greenville, South Carolina.
25. Buried Treasure Ministries is both a church and a mission which tutors students,
provides job skills training, and provides counseling for youths, teens, adults and families. It also
has a goal to work with public service agencies and with businesses in setting up a community crime
watch to make the community safe. A lengthy list of its mission statement and other services are
reflected in the memo entitled "Taking Back the Community for the Lord's Work." See Protestant
Exhibit # 3 and Exhibit 2-E.
26. Incident reports covering the period from March 1996 to March 1997 from the
Greenville County Sheriff's office together with the testimony of Deputy Sheriff Joseph E. Garner
reflect that a tremendous number of criminal violations have taken place within the one block area
of the location. The deputies in Greenville County are assigned a "regular beat" by Sheriff Johnny
Mack Brown. This location is part of the regular beat of Deputy Sheriff Garner. He knows most of
the people in the neighborhood. This beat is one the worst crime areas in Greenville County. There
have been numerous calls to the sheriff's office for assistance with regard to disturbances, loitering,
assaults, larceny, vehicle thefts, drug and narcotic problems, drunkenness, trespassing, forcible rape,
robberies, burglaries, suicides, weapons violations, and other crimes. Eight murders have taken
place in the general area over the last two and a half years.
27. Both Rev. Martha Evans and Rev. Sherwood Evans, Sr. , who are husband and wife,
are ordained ministers. Their church is open seven days a week. It is their desire that the church will
be a safe haven for the children and citizens in the area who need help. They lost a son who was
murdered in the community near this location in November , 1996.
28. At the corner of White Horse Road and Bluff Road is a bus stop for the children who
reside in the neighborhood and at the housing project. These children walk by the Chat and Chew
and the location to get to the bus stop.
28. Because of the limited resources of the Sheriff's Department, the issuance of a beer
and wine permit and a sale and consumption ("minibottle") license at the proposed location would
unduly burden local law enforcement efforts in the area.
29. The issuance of the permit and license would have a detrimental impact upon the
surrounding area, despite Petitioner's intent to operate a reputable establishment.
30. Because of the past history of this location and the other licensed locations in the area,
the drug-related activity and other criminal activity in this area, the inadequacy of law enforcement
to control crime in the area, together with the effect criminal activities have on the safety and welfare
of children and citizens in the area, which would be exacerbated if the permit and license were issued
and the establishment was reopened, I find that the proposed location is unsuitable for issuance of
the requested permit and license. Further, I find that the business at the proposed location is not a
bona fide business primarily and substantially engaged in the preparation of food.
CONCLUSIONS OF LAW
Based on 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), which sets forth the requirements for the
issuance of a beer and wine permit, provides as follows:
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), which sets forth the requirements for the
issuance of a sale and consumption ("mini-bottle") license, 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-premises 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. A church is located within
the prescribed proximity to the proposed location.
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.
10. 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).
11. The court can consider whether "there have been law enforcement problems in the
area." 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.
ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Where on-premises consumption
of alcoholic beverages would create a strain upon police to adequately protect the surrounding
community, a location is unsuitable. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308
(1981); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
12. 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, as corroborated by the Greenville County Sheriff's office
incident reports and the testimony of Deputy Sheriff Joseph Garner; the number of administrative
violations at this location under prior management; the history of criminal violations at this general
locale; the safety concerns of children and citizens in the area; and inadequacy of law enforcement
to control crime in the area are all factors which require this court to deny the issuance of the
requested permit and license. Citizens in the neighborhood have the right to live in a safe and
crime-free environment and it is the responsibility of this court to deny any permit and/or license
which would deny such rights.
Further, it appears that the club is not functioning as a restaurant which is required by S.C.
Code Ann. § 61-6-1820. This section authorizes the issuance of a liquor license only if the business
is bona fide engaged primarily and substantially in the preparation and serving of food or, in the
furnishing of lodging. This business is primarily functioning as a pool hall.
The evidence is overwhelming that the grant of the permit and license would greatly impact
property values in the neighborhood and increase stress in terms of the safety and well-being of the
residents.
11. Permits and licenses issued by the State for the 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).
12. For all of the reasons stated above in this Decision, I conclude that the Petitioner has
not met his burden of proof in showing that he meets all of the statutory requirements for holding
an on-premises beer and wine permit and a sale and consumption ("minibottle") license as a
restaurant at its location at 912 White Horse Road, Greenville, South Carolina. I further conclude
that the proposed location is not a proper one for the issuance of the permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the request by Alvin M. Jeffries, d/b/a Jerline Lounge for an on-premises
beer and wine permit and a sale and consumption ("minibottle") license for the proposed location
at 912 White Horse Road, Greenville, Greenville County, South Carolina is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
August 19, 1997 |
