SC Administrative Law Court Decisions

The Petitioner, Donna J. Hegler, Exchange Club, Inc., d/b/a Racers Exchange Club (Hegler) of Lancaster, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit and a sale and consumption license for 1386 Charlotte Highway, Lancaster, South Carolina. Wayne Phillips filed a protest seeking to prevent DOR from granting the permit and license. A hearing on the beer and wine application is required under 23 S.C. Code Regs. 7-90 (Supp. 1996). As to mini-bottles, a hearing is required under S.C. Code Regs. 7-3 (Supp. 1996). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the required hearings under the contested case provisions of S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1996). The relevant factors require granting the permit and license with restrictions.

Does Hegler meet the requirements for an on-premises beer and wine permit and a mini-bottle license?

III. Analysis

1. Positions of Parties:

Hegler asserts she meets the requirements of the statutes. DOR states that due to the protest, no permit could be granted and it awaits the outcome of this hearing. The protestant asserts only one basis for denial of the permit: the proposed location is not proper.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. Hegler filed an application with DOR for an on-premises beer and wine permit and a mini-bottle license.

2. The applications are identified by DOR as AI # 112645 and AI # 112646.

3. The proposed location of the business and the place where the beer and wine permit and the mini-bottle license will be utilized is 1386 Charlotte Highway, Lancaster, South Carolina.

4. The nature of the business is that of a private club.

5. A protest to the application was filed by Wayne Phillips.

6. Except for the unresolved issue of suitability of location, DOR would have issued the permit and license.

7. The hearing on this matter was held May 19, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

b. Moral Character

8. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.

9. The SLED report revealed no criminal violations.

10. The applicant has not engaged in acts or conduct that imply the absence of good moral character.

11. The applicant is of good moral character.

12. The corporation, Racers Exchange Club, Inc., was established January 6, 1997 as a non-profit corporation with Hegler as an officer.

13. Hegler is now President of the corporation.

14. The applicant as an individual and as a principal of the corporation is of good moral character.

c. Reputation For Peace and Good Order In The Community

15. The corporation, Racers Exchange Club, Inc., was established in January of 1997.

16. The corporation has not created a lack of peace nor created disorder in the community.

17. The reputation of Racers Exchange Club, Inc., is one of peace and good order in the Lancaster community.

d. Legal Resident and Principal Place of Abode

18. Hegler has resided in South Carolina since 1996.

19. Hegler holds a valid S.C. driver's license.

20. Hegler currently resides at 2155 Catoe Road, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

21. Hegler is both a legal resident of the United States and South Carolina and has held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

e. Prior Revocation Of Beer or Wine Permit

22. Hegler has never had a beer and wine permit revoked.

f. Age

23. Hegler's date of birth is October 12, 1949.

24. Hegler is over twenty-one years of age.

g. Proposed Location

25. The same location has been operated in the past with a beer and wine permit and a mini-bottle license as the Sports Page.

26. DOR's records do not demonstrate any violations of liquor laws during the former owner's operations.

27. The area in which Hegler will locate has at least six commercial establishments providing either beer and wine or mini-bottle sales.

28. The area is predominately commercial.

29 The addition of a beer and wine permit and a mini-bottle license will not significantly impact the character of the neighborhood.

h. Notice

30. Notice of the Hegler application was published in the Lancaster News, a newspaper published and distributed in Lancaster County, with notice published on January 1, 8 and 15 of 1997.

31. Notice of the Hegler application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Lancaster.

32. Hegler gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.

33. Hegler gave notice of the application by way of required advertising by newspaper and display of signs.

3. Discussion

a. General Criteria

There is no factual dispute in this matter as to the applicant's satisfying the requirements of good moral character, the reputation of Racers Exchange Club, Inc., being one for peace and good order in the community, the applicant being a legal resident of South Carolina for 30 days, having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine permit revoked within two years of the date of the current application, or being at least twenty-one years of age. The issue is whether the proposed location is proper.

Under S.C. Code Ann. § 61-4-520 (Supp. 1996), no beer and wine permit may be granted unless the location is a proper location. Likewise, in granting a mini-bottle license, suitability of the location is a proper consideration. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). In the case before me, the most relevant consideration is whether similar existing businesses are in the area, whether the location has in the recent past been permitted, 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). Finally, to the extent concerns are valid, restrictions may be appropriate. The granting of a beer and wine permit or a mini-bottle license is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Regs. 7-88 (1976).

b. Basis For Decision

I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. Here, the same location has been operated in the past with a beer and wine permit and a mini-bottle license as the Sports Page. DOR's records do not demonstrate any violations of liquor laws during the former owner's operations. In addition, the area in which Hegler will locate has at least six commercial establishments providing either beer and wine or mini-bottle sales. The area is predominately commercial and the addition of a beer and wine permit and a mini-bottle license will not significantly impact the character of the neighborhood.

While the area is proper for the permit and license sought, the need to restrict unnecessary noise and limit the hours of operation warrants restrictions. Here, the protestant lives a short distance from the proposed location and, in the past, former owners have operated until 4:00 a.m and have occasionally permitted excessive noise. Accordingly, to avoid repeating these problems, Hegler shall close no later than 2:00 a.m., provide no live entertainment, and, if provided at all, maintain recorded entertainment at a volume level that cannot be heard outside the building at a distance of 100 feet.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant operates a bona fide nonprofit organization. S.C. Code Ann. § 61-6-1820(1) (Supp. 1996).

2. The applicant possesses good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1996); S.C. Code Ann. § 61-6-1820(2) (Supp. 1996).

3. The corporation has a reputation for peace and good order in the community. S.C. Code Ann. § 61-6-1820(2) (Supp. 1996).

4. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-4-520(2) (Supp. 1996); S.C. Code Ann. § 61-6-1820(7) (Supp. 1996).

5. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-4-520(4) (Supp. 1996).

6. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1996); S.C. Code Ann. § 61-6-1820(6) (Supp. 1996).

7. With restrictions, the applicant's location is suitable and is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

8. Consideration must be given to whether the granting of the permit and license will have an adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9. The proximity of the location to residences is a proper consideration. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

10. The existence or lack of existence of other similar businesses in the area, whether the location has in the recent past been permitted, and whether the location is now more or less suitable than it was in the past are all factors to consider in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

11. The presence of loud music combined with proximity to residences is a factor in denying a permit or license. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

12. With restrictions, the proposed location is a proper location for a beer and wine permit and for a mini-bottle license. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); S.C. Code Ann. § 61-6-1820(3) (Supp. 1996).

13. The granting of a beer and wine permit and the granting of a mini-bottle license is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943).

14. Permits and licenses are authorized by statute and regulation to be issued by DOR with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Regs. 7-88 (1976).

15. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(7) and (8) (Supp. 1996); S.C. Code Ann. § 61-6-1820(4) and (5) (Supp. 1996).

16. With restrictions, the applicant meets the requirements for the issuance of a mini-bottle license pursuant to S.C. Code Ann. § 61-6-1820 (Supp. 1996).

17. With restrictions, the applicant meets the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1996).

DOR is ordered to grant Hegler's application for an on-premises beer and wine permit and a sale and consumption license at 1386 Charlotte Highway, Lancaster, South Carolina upon Hegler's signing an agreement with DOR to adhere to the following restrictions:

1. Hegler shall close no later than 2:00 a.m.

2. Hegler shall provide no live entertainment at the location.

3. If recorded entertainment is provided, such shall be at a volume level that cannot be heard outside the building at a distance of 100 feet.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 21st day of May, 1997