ORDERS:
ORDER AND DECISION
Petitioner seeks a sale and consumption ("minibottle") license for a restaurant/club
located at 201 Cedar Branch Road, Loris, South Carolina in Horry County. After timely notice to
the parties and the Protestant, a hearing was held on July 17, 1997 at the Administrative Law
Judge Division in Columbia, South Carolina.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of the evidence, I
make the following findings of fact by a preponderance of the evidence:
1. Petitioner's application to the Department of Revenue ("Department") is made a
part of the record by reference.
2. Petitioner seeks a minibottle license for a location currently known as Club
Nightwatch and operated as a social club. Club Nightwatch ("club") is located in Horry County
at 201 Cedar Branch Road, Loris, South Carolina.
3. The club is currently licensed to sell beer and wine on premises.
4. The club is open on Wednesday and Friday from 10:00 p.m. to 2:00 a.m.
5. Petitioner intends to operate the club as a restaurant if he is granted a minibottle
license. In other words, Petitioner seeks a conditional license approving the suitability of his
location for a minibottle license, whereupon, Petitioner then intends to satisfy any remaining
statutory prerequisites to licensure.
6. No church, school, or playground is within close proximity of the club.
7. Petitioner is of good moral character. The South Carolina Law Enforcement
Division completed a criminal background investigation of Petitioner, which revealed no
criminal violations, and Petitioner has not engaged in acts or conduct that imply the absence of
good moral character.
8. Petitioner is at least twenty-one years of age, a U.S. citizen, and a resident of the
State of South Carolina. Furthermore, Petitioner has maintained his principal residence in this
state for at least thirty days prior to making application for the license.
9. Notice of the application appeared in the North Myrtle Beach Times, a newspaper
of general circulation in the area of the club, for at least once a week, and notice was posted at
the club for fifteen days.
10. Petitioner has not had an alcohol and beverage permit or license revoked within
two years of the date of his application.
11. Petitioner's club has seating for at least forty (40) people simultaneously.
However, the club does not have a Class A restaurant license, is not primarily and substantially
engaged in the preparation and serving of meals, does not have readily available menus, and is
not equipped with a kitchen utilized for the cooking, preparation, and serving of meals.
12. Officer James Roberts of the Horry County Police Department offered testimony
indicating that there have been a number of recent disturbances at the club, including random gun
fire. Further, he indicated that when the police are called to the club because of disturbances,
they are hampered in their efforts to physically reach the club due to traffic congestion resulting
from the club's patrons parking on the shoulders of the road.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
A. Jurisdiction
1. S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
B. Statutory Requirements
2. S.C. Code Ann. §§ 61-5-10, et seq. (Supp. 1995) and S.C. Code Regs. 7-19
establish the criteria for the issuance of a minibottle license for a restaurant. S.C. Code Ann. §
61-5-50 provides that the department may grant a minibottle license upon finding, among other
things, "the applicant is a bonafide 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, as described in Section 61-5-10." S.C. Code Ann. § 61-5-50(1) (Supp.
1995). Petitioner contends that his business will operate as a club and restaurant.
3. "Bona fide engaged primarily and substantially in the preparation and serving of
meals" refers only to such a business which has been issued a Class A restaurant license prior to
the issuance of a minibottle license and, in addition, provides facilities for seating not less than
forty persons simultaneously at tables for the service of meals. S.C. Code Ann. § 61-5-10(1)
(Supp. 1995).
4. Additionally, S.C. Code Regs. 7-19 (1976 Code of Laws) provides:
A. Any business establishment that applies for or holds a sale and consumptions license pursuant to § 61-5-20(4) of the Code and is not engaged in the furnishing of lodging, must:
1. Be equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals; and
2. Have readily available to its guests and patrons either "menus" with the listings of the various meals offered for service or a listing of available meals and foods, posted in a
conspicuous place readily discernible by the guest or patrons; and
3. Prepare for service to customers hot meals at least once each day the business establishment chooses to open.
4. If such establishment advertises, a substantial portion of its advertising must be devoted to its food services.
(emphasis added).
5. Regulation 7-19 also provides the following definitions of "meal," "kitchen," and
"primarily":
1. "Meal" means an assortment of various prepared foods which shall be available to guests on the licensed premises during normal "mealtimes" which occur when the licensed business establishment is open to the public. Sandwiches, boiled eggs, sausages and other snacks prepared off the licensed premises but sold thereon, shall not constitute a meal.
2. "Kitchen" means a separate and distinct area of the business
establishment that is used solely for the preparation, serving
and disposal of solid foods that make up meals. Such area must be adequately equipped for the cooking and serving of solid foods, and the storage of same.
3. "Primarily" means that the serving of meals by a business establishment constitutes a regular and substantial source of
business to the licensed establishment and that meals shall be served upon the demand of guests and patrons during the
normal "mealtimes" which occur when the licensed business establishment is open to the public and that an adequate supply of food is present on the licensed premises to meet such demand.
6. Petitioner does not satisfy the statutory requirements enacted by the South
Carolina General Assembly for the issuance of a minibottle license. Specifically, Petitioner fails
to establish that his business is "a business bona fide engaged primarily and substantially in the
preparation and serving of meals." See S.C. Code Ann. § 61-5-50 (Supp. 1995) (emphasis
added); Brunswick Capitol Lanes v. S.C. ABC Comm'n, 273 S.C. 782, 260 S.E.2d 452 (1979).
Furthermore, Petitioner does not satisfy the regulatory requirements of the Department of
Revenue for holding a license.
In making a decision in this matter, this tribunal is constrained by the record before it and
the applicable statutory, regulatory, and case law. Currently, Petitioner's club has seating for at
least forty (40) people simultaneously. However, the club does not have a Class A restaurant
license, is not primarily and substantially engaged in the preparation and serving of meals, does
not have readily available menus, and is not equipped with a kitchen that is utilized for the
cooking, preparation, and serving of meals.
Petitioner contends that if this tribunal determines that the proposed location is suitable,
Petitioner intends to satisfy all statutory requirements for holding a minibottle license for a
restaurant. However, no license may be issued to Petitioner prior to his satisfying the statutory
requirements. See S.C. Code Ann. § 61-5-10 (Supp. 1995).
C. Suitability of the Location
7. Although "proper location" is not statutorily defined, broad discretion is vested in
the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v.
Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
8. 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 alcohol
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).
9. 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); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276
S.E.2d 308 (1981).
10. In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C.
504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
11. The proposed location is unsuitable because granting a minibottle license would
worsen the situation in a community which already has high incidents of criminal activity. See
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
12. "A liquor license or permit may properly be refused on the ground that the
location of the establishment would adversely affect the public interest, that the nature of the
neighborhood and of the premises is such that the establishment would be detrimental to the
welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be
conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501
(1981). The proposed location, if licensed, would adversely affect the public interest. The
record is clear that this community already has a problem with criminal activity and that
disturbances arise from the operation of the club. Further, traffic congestion results from the
operation of the proposed location, which hinders the availability of adequate law enforcement
protection. Thus, it is equally clear that granting this establishment a minibottle license would
not be conducive to the general welfare of the community.
13. When evidence establishes that the sale of alcohol is likely to be detrimental to the
public interest because of the unavailability of adequate law enforcement, there exists a sufficient
basis for the denial of the permit. See Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984).
14. Petitioner does not satisfy all of the statutory and regulatory requirements for
holding a minibottle license. Furthermore, the proposed location is not suitable for the issuance
of a minibottle license.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Job Hypolite, d/b/a Nightwatch Club, for a minibottle
license for a location at 201 Cedar Branch Road, Loris, South Carolina, is denied.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
Columbia, South Carolina
August 7, 1997 |
