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 Jacquelyn J. Bethea, d/b/a Sunset Grill # 2 ("Applicant" or
"Petitioner") for an on-premise sales and consumption ("minibottle") license (AI 113407) for the
premises located at 91 South Ocean Blvd., North Myrtle Beach, Horry County, South Carolina
("location").
A hearing was held on June 16, 1997, at the offices of the Administrative Law Judge
Division ("Division"), Columbia, South Carolina. The issue considered was the suitability of the
proposed location.
The application was protested by Barbara T. Wills of 941 Tiffany Lane, North Myrtle Beach,
South Carolina ("Protestant"). She appeared at the hearing and testified in opposition to the issuance
of the license. The South Carolina Department of Revenue ("Department"), as set forth in its Motion
to Be Excused dated May 1, 1997, would have issued the license but for the protest. The
Department's Motion to Be Excused from appearing at the hearing was granted by Order dated May
8, 1997.
The application request is granted with restrictions.
EXHIBITS
Certified copies of documents forwarded to the Administrative Law Judge Division from
the Department are made a part of the record. Various other exhibits including photographs of the
proposed location, diagrams of the surrounding area around the location, and letters from city and
law enforcement officials expressing their support of the application were entered into the record at
the hearing by the Applicant.
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 the 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 presently holds an on-premises beer and wine permit (BW 103244)
authorizing the consumption of beer and wine at the location. Petitioner is seeking a sale and
consumption ("minibottle") license for her restaurant located at 91 South Ocean Boulevard, North
Myrtle Beach, South Carolina.
4. Petitioner has never had a beer and wine permit or minibottle license revoked or
suspended.
5. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in the North Myrtle Beach Times, a newspaper of general circulation in the local area where
the applicant proposes to engage in business.
6. 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.
7. Applicant is of good moral character and has no criminal record.
8. Applicant was born on March 20, 1953. She is forty-four (44) years old.
9. Applicant submitted letters from C.C. Sendler, Chief of Patrol for the North Myrtle
Beach Department of Public Safety, and Terry White, City Councilman for North Myrtle Beach,
expressing their support of her application and the suitability of the location.
10. The location is owned by Collins Properties, L.P. The company had no objection to
the granting of a license.
11. The location is currently operating as a restaurant and arcade with a patio that opens
onto the beach. Two adjoining businesses, an ice cream parlor and a teen nightclub, have doors that
enter into the arcade area. The restaurant section of the location has seating for approximately forty
(40) persons.
12. The location has been issued a Grade "A" Restaurant Rating by the Health
Department. A variety of short order foods and grill items are served.
13. Sunset Grill #2 is located along one of the major thoroughfares in North Myrtle
Beach. The area is commercial in nature, and there are numerous other establishments within a one-block radius of the location that have beer and wine permits and minibottle licenses.
14. There are no churches, schools, or playgrounds within five hundred feet (500') of the
proposed location.
15. There is a large parking area at the location sufficient to allow its customers to keep
their vehicles out of the public right of ways.
16. The Protestant voiced several concerns regarding the issuance of the license. She
indicated that the proposed location was a popular arcade often frequented by young children.
Protestant also objected to having liquor served at a location adjacent to a teen nightclub. She
believed that such activities would have a negative influence on the young people who come to the
location.
17. The Department would have issued the beer and wine permit but for the protest that
was filed against the application.
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.§ 61-6-1820 (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.
3. 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.
4. 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.
5. 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.
6. 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. No churches, schools or
playgrounds are located within the prescribed proximity to render the proposed location unsuitable.
7. 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). The
location in this case has operated under an on-premises beer and wine permit for several years.
Although the location is frequented by young children and teenagers, no violations have ever been
issued against the Petitioner or the location. The Protestant did not offer any factual evidence that
granting a minibottle license would have a deleterious effect on the community at large. Letters of
support from law enforcement and other city officials submitted at the hearing outweigh the
generalized concerns raised by the Protestant. Furthermore, the presence of other licensed
establishments across the street from the proposed location suggests that an additional minibottle
license will not pose any serious threat to the safety or welfare of the community.
11. 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).
12. I conclude that the Petitioner has met her burden of proof in showing that she meets
all of the statutory requirements for holding a sale and consumption ("minibottle") license at Sunset
Grill #2, located at 91 South Ocean Boulevard in North Myrtle Beach, South Carolina. I further
conclude that the proposed location is a proper one for granting the license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Jacquelyn Bethea, d/b/a Sunset Grill #2 for a sale and
consumption ("minibottle") license at the location found at 91 South Ocean Boulevard, North Myrtle
Beach, South Carolina, is granted, and
IT IS FURTHER ORDERED that the South Carolina Department of Revenue shall issue
the license upon Petitioner's payment of the required fees and costs.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
June 23, 1997 |
