ORDERS:
FINAL 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 Nillie A. Huggins, d/b/a Sister & Brotherhood Club.
("Applicant" or "Petitioner") seeking an on-premises beer and wine permit (AI 107866) for the
premises located at 8181 Old Magnolia Street, Horry County, South Carolina ("location").
A hearing was held on June 10, 1997, at the offices of the Administrative Law Judge
Division ("Division"), Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina.
The issue considered was the suitability of the proposed location.
The application was protested by the Reverend Willie J. Dozier, Pastor of the Mt. Moriah
Missionary Baptist Church ("church"). Reverend Dozier and George E. Robinson, Jr., a member
of the church testified at the hearing in opposition to the grant of the on-premises beer and wine
permit requested by Petitioner. When a permit for the sale of beer and wine for on-premises or off-premises consumption is protested, a hearing is authorized on the matter with jurisdiction to conduct
the hearing vested in the Division. The South Carolina Department of Revenue ("Department")
asserted in its Motion to Be Excused dated March 17, 1997, that there was no controversy between
the Petitioner and the Department and that the sole issue was the question of the suitability of the
location based upon the protest filed by Rev. Dozier. The Department's Motion to Be Excused
from appearing at the hearing was granted by Order dated March 24, 1997.
The application request is denied.
EXHIBITS
Certified copies of documents forwarded to the Administrative Law Judge Division from
the Department are made a part of the record. Also, the protestant placed into the record, without
objection from the Petitioner, four (4) photographs taken of the proposed location and the
surrounding area.
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 and the protestant,
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. Petitioner is seeking an on-premises beer and wine permit for a cafe located at 8181
Old Magnolia Drive (Bucksport Road) in Horry County, South Carolina. The location is
approximately 13 to 15 miles from the City of Conway, South Carolina. It is located in a small rural
community called Bucksport. The area is mixed residential and commercial with several churches
present in the area.
4. The real property on which the building is located consists of a small lot owned by
James W. Hemingway. The members of the club intend to lease the property from its owner.
5. The Sister and Brotherhood Club consists of some six men and women who want to
establish a club where they can hold their bi-monthly meetings. There may be other members of the
club. The membership of the club intends to operate the location as a pool hall.
6. The pool hall will have pool tables and a small jukebox. No video machines will be
placed in the building nor will there be any live bands or music.
7. The parking area at the location is small, only able to accommodate approximately
four or five vehicles.
8. The hours of operation of the pool hall will be from 5:00 p.m. or 6:00 p.m. to 11:00
p.m. or 12:00 at night, Monday through Saturday. The club/pool hall will be closed on Sunday.
9. Petitioner is employed at Conway Mills (yarn mill) as a machine operator. She
intends to continue to work there. Petitioner's shift at the mill is from 8:00 a.m. to 4:00 p.m.,
Monday through Friday, and sometimes she works on Saturdays and Sundays.
10. It is the intent of Petitioner to operate the club jointly with other members of the club.
11. Petitioner is single and has never been married. She was born on January 10, 1954
in Horry County. She is 43 years of age and has lived with her parents all her life at the same
location on Rutledge Drive. She lives several blocks from the location which is within walking
distance.
12. Applicant has never had a beer and wine permit revoked.
13. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Sun News, a newspaper of general circulation in the local area where the Petitioner
proposes to engage in this business.
14. Notice of the application has been provided to the general public by the South
Carolina Law Enforcement Division through the posting of a sign for a minimum of fifteen (15)
days at the site of the proposed location.
15. Petitioner is of good moral character. She has no record of any criminal violations.
A fellow sister of the Petitioner, Mrs. Ruby Livingston, aged 55, has previously operated a pool hall
at this location. She intends to help in the operation of this new club. She lives approximately 12
to 15 miles from the proposed location with her disabled husband. She is employed as a
housekeeper at a resort hotel in Myrtle Beach.
16. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 1996) concerning
the residency, age and moral character of the Petitioner are properly established as are the publication
and notice requirements.
17. The Horry County Sheriff's Office did not protest the application request.
19. Across the street from the location is a small shopping center (three or four small
stores) where a small convenience store is located. The convenience store has issued to its owners
a permit for the sale of beer and wine for off-premise consumption.
20. Across the highway from the proposed location is a club called the Bucksport Men's
Club. This club has been issued by the Department an on-premises beer and wine permit and a sale
and consumption ("mini-bottle") license.
21. On the same side of the highway as the proposed location, two houses away, is a night
club called Bell's Lounge. The owner(s) of the lounge have an on-premises beer and wine permit.
The lounge has live music and disc jockeys who spin records. At times loud music emanates from
the location, especially on Wednesday nights. Petitioner works at Bell's Lounge as a cook.
22. The Mt. Moriah Missionary Baptist Church is approximately one-fourth (1/4) a mile
from the proposed location. There are services conducted at the church every Sunday morning and
Bible studies on Thursday evenings. Other meetings are held at the church from time to time. The
concerns of the two protestants are that there are sufficient locations selling beer, wine and alcohol
in the general vicinity of the location which draws the young men in the community. Additional
locations would contribute to the already existing problem of these men drinking to excess and
getting into fights. Also, they are concerned with the closeness of the location to the highway which
has heavy vehicular traffic. Many children and adults walk up and down the roadway, going to and
from the stores, night clubs, and residences. Another location selling beer and wine could create an
additional danger to these citizens.
23. There are no schools or playgrounds in close proximity to the proposed 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 is empowered to
hear this case and issue a Final Decision.
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 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. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the 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).
4. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact (judge) in determining the fitness or suitability of a particular location. Fast Stops, Inc.
v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. S.C. ABC Commission, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5 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.
6. 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 judge 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). Also, the judge can consider the proximity or the
absence of other licensed locations in the immediate vicinity and the existence of students and small
children in the area.
7. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition to a permit consists of opinions and
conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
8. In this case, the protestants have addressed serious concerns which must be
considered by this tribunal. A thorough consideration of them requires that the permit as requested
for the sale of beer and wine for on-premises consumption at this location must be denied. There
are numerous residences in the community as well as three churches where services and meetings
are held on Sundays and other times during the week. Further, there are at least three other locations
where beer and wine are sold, one where liquor is sold. Two of these locations allow on-premises
consumption. There are sufficient clubs and locations in this small community where beer, wine and
alcoholic beverages may be purchased. To allow any additional permits or licenses would seriously
affect the safety of the citizens in the community and create additional stress to their well-being.
Also, it would increase existing problems with alcohol-related violence. There are instances of
fights already occurring in the neighborhood among its young men. The availability of more alcohol
would exacerbate this problem. For the above reasons, this tribunal is convinced that the grant of
this permit should be denied.
This tribunal is particularly concerned with protecting the safety and well-being of citizens
in the community they live in. They are entitled to live in their homes in a quiet and peaceful
manner. 9. Permits and licenses issued by this state for the sale of liquor, beer and wine
are not property rights. Rather, they are privileges granted in the exercise of the state's police power
to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Judge, as the trier of fact authorized to grant the issuance
of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v.
S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
10. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an
applicant meets 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.
11. Standards for judging the suitability 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, regulated by the State.
13. I conclude that the Petitioner has not met her burden of proof in showing that she
meets all of the statutory requirements for holding an on-premises beer and wine permit at the
location. I further conclude that the proposed location is not a proper one for granting the permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Nillie A. Huggins, d/b/a Sisterhood and Brotherhood
Club for an on-premises beer and wine permit for the club/cafe located at 8181 Old Magnolia Street,
Horry County, South Carolina, is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
June 19, 1997 |
