ORDERS:
ORDER AND 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 Sammie L. Green, Tabacco Road Enterprises,
Black Jack Finish Line ("Petitioner" or "Applicant"), for an on-premises beer and wine permit (AI
108699) and a non-profit private club mini-bottle license (AI 108700) for the premises located at
302 McKay Road, Timmonsville, Florence County, South Carolina ("proposed location").
A hearing was held on July 29, 1997 at the Darlington County Courthouse, Darlington ,
South Carolina. The issue considered was the suitability of the proposed location.
The application was protested by the City of Timmonsville Police Department through its
Chief of Police, Willie M. Connor, who appeared at the hearing and offered testimony in opposition
to the issuance of the permit and license. The South Carolina Department of Revenue
("Department"), as set forth its Motion to be Excused dated June 9, 1997, stated that there was no
controversy between the Petitioner and the Department and that the sole issue is the question of the
suitability of the location based upon the filed protest. The Department's Motion to Be Excused
from appearing at the hearing was granted by Order dated June 23, 1997.
The application is granted with restrictions.
EXHIBITS
Certified copies of the documents forwarded to the Division from the Department are made
a part of the record.
FINDINGS OF FACT
Having observed the witnesses and reviewed the certified documents sent to the Division by
the Department, and having 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 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
both parties and the protestant.
3. On April 26, 1996, Marshall G. Loving, owner of Tabacco Road Enterprises, filed
an application with the Department for an on-premises beer and wine permit and a non-profit private
club mini-bottle license for a private club called Black Jack Finish Line, located at 302 McKay Road,
Timmonsville, Florence County, South Carolina.
4. Mr. Loving was born on July 12, 1945 and lives in the Byrdtown Community
(between Society Hill and Hartsville) of Darlington County, South Carolina. He is employed full-time at the Ford dealership in Darlington, South Carolina. In addition, he owns a farm and two retail
liquor stores (one in Timmonsville and one in Hartsville). He has never had an ABC permit or
license revoked.
5. On July 29, 1996, Sammie L. Green, a vice-president of the Black Jack Finish Line,
notified the Department that the permit and license would be applied for by him, in lieu of Mr.
Loving. Further, he noted that the club would be called the Black Jack Finish Line Social Club.
6. Petitioner was born on January 16, 1958 and is 39 years of age. He lives at 210
North Warren Street, Timmonsville, South Carolina. He has lived in Timmonsville all his life. He
is a legal resident and citizen of the state of South Carolina and has held such status for more than
30 days prior to the filing of the application. He attended South Carolina State College for four years
and is self-employed with a family concrete and paving company. He holds a valid South Carolina
drivers license.
7. Articles of Incorporation for a non-profit corporation entitled Tabacco Road
Enterprises, Black Jack Finish Line, with a street address of 302 McKay Road, Timmonsville, South
Carolina, were filed with the Secretary of State of South Carolina on February 26, 1996. The
Certificate of Incorporation for the non-profit corporation was issued by that office on February 27,
1996.
8. The Black Jack Finish Line, Inc. adopted a Constitution and By-Laws on June 25,
1996 for a social club. They comply with the requirements set forth in regulations which govern
non-profit social clubs selling beer, wine and alcoholic beverages.
9. The application was protested by Chief Willie Connor of the Timmonsville Police
Department. In the written protest, Chief Connor gave two reasons: (1) the police department does
not have a sufficient police staff to adequately protect and enforce the laws, and (2) a number of
complaints had been made to his department concerning problems at the retail liquor store owned
by Mr. Loving.
10. Except for the protest filed by Police Chief Connor, the Department would have
issued the beer and wine permit and the non-profit private club mini-bottle license. No protests were
filed by any businesses or any individuals residing in the general vicinity.
11. Petitioner has never held any type of permit/license for the sale of beer, wine, or
alcoholic liquors and therefore has not had such a permit/license revoked. Based upon the criminal
history report on file and questioning of the petitioner at the hearing considering the several
violations he has been charged with, I find that the petitioner is of good moral character.
12. Notice of the application appeared in The News Journal, a Florence newspaper of
general circulation where the proposed location is located, on March 27, April 3 and April 19, 1996.
Also, a notice of the application was posted by a South Carolina Law Enforcement Division agent
at the proposed location for fifteen days between May 7, 1996 and May 22, 1996.
13. Several locations in the general vicinity of the proposed location hold on- premises
beer and wine permits.
14. The area is predominately commercial with a few scattered residences. The location
is in a one story building. In that part of the building abutting Highway 76 is a retail liquor store
owned by Mr. Loving. It is operated by two of his sisters. The building faces McKay Road and is
owned by Mr. Loving.
15. Highway 76 is a major thoroughfare between the cities of Florence and Sumter.
Across Highway 76 is the Oxford Drapery plant on one corner and a Hardee's restaurant on the other
corner. Behind the location, separated by a chain link fence, is a club known as Liz's Place which
has an on-premises beer and wine permit. Kennedy's Place, a club which also had an on-premises
beer and wine permit, is now closed and Liz's Place will utilize all space inside the building. Next
to Liz's Place is Floyd's Fish Market, and next to the fish market is an IGA grocery. Across
Highway 76 is the magistrate's office and a pharmacy.
16. The proposed location will be a sports bar operating as a private club. Televisions
will be installed. There are security lights on the entire exterior at the proposed location and there
are lights across the road.
17. The Timmonsville police department is seven to eight blocks from the location.
18. One of the concerns of Chief Connor is of limited parking spaces. However, there
is parking in front of, beside and at the rear of the location for approximately 40 to 50 cars. Also
of concern to Chief Connor is a lack of police manpower to respond to disturbances at the club. The
petitioner and Mr. Loving can secure the location and address that concern with proper fencing to
ensure the location will not be a danger to vehicular traffic in the roadways or to citizens in the
immediate community. Also, routine patrols outside the location should prevent any disturbances
and alleviate any public urination concerns.
21. There are no schools, churches, or playgrounds within the immediate vicinity of the
proposed location.
22. Petitioner went to public schools with many of the Timmonsville police officers and
knows them personally.
23. There are forty individuals signed up as members of the club. Petitioner has a list of
an additional 50 potential members.
24. Initially the location intends to employ five individuals. Its hours of operation will
be from approximately 1:00 p.m. daily until closing, seven days each week. The membership will
be limited to a minimum age of twenty-three (23) years. There will be a doorman at the door at all
times to ensure only the admittance of members or their guests. Petitioner intends to actively
participate in the management and operation of the club. Mr. Loving will be a member of the board
of directors and will actively participate in the management and operation of the entire club operation
as well. 25. Initially the club will sell cold sandwiches to its members. Later, a steamer
will be installed which will allow the serving of finger foods.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law the following:
- 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.
- 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.
- 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. 23 S. C. Code Ann. Regs. 7-17 (Supp. 1996) set forth the criteria for a bona fide
nonprofit corporation to be eligible for a mini-bottle license. Petitioner has complied with all these
requirements in both its Articles of Incorporation and in its Constitution and By-Laws.
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 a bona fide business engaged primarily and substantially in food preparation
and service or the furnishing of lodging.
6. S.C. Code Ann. § 61-6-120 (Supp. 1996) prohibits the issuance of a liquor license
for on-premise 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.
8. 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). In this
case, the testimony of the police chief consisted only of his opinion and is conjectural at best. He
presented no documentary evidence that the parking of additional cars at the proposed location
would greatly impact local property values, increase stress in terms of the safety and well-being of
any local residents, or adversely affect vehicular traffic on McKay Road. The testimony of Mr.
Loving, as corroborated by the petitioner, is that there is sufficient parking for at least 40 to 50 or
more cars at the location and probably more. The widening of McKay Road in the future to three,
or even four lanes, will not result in the reduction of parking spaces at the proposed location to the
point that the lot will not accommodate patrons who frequent the location.
Further, the proposed location is in a commercial area and there are other locations in the
general area that sell beer and wine for on-premises consumption and for off-premises consumption.
No complaints or protests, except that of the police chief, were filed. No residents in the area
objected to the issuance of the permit and license.
Also, concerns about public urination by patrons at the location can be addressed by
employees patrolling the parking areas frequently. Such patrols will minimize any disturbances in
the exterior areas and alleviate any potential traffic problems.
Although law enforcement considerations are a factor in determining the suitability of a
location, those considerations must not be based on conjecture. Although this tribunal does not find
that the potential law enforcement concerns raised at the hearing by the police chief are sufficient
to deny the permit, if any such problems occur after the club's opening, then those problems may
be the subject of a protest when the permit and license are up for renewal.
11. S.C. Code Ann. § 61-6-1600 provides as follows:
Nonprofit organizations which are licensed by the department under this article may sell
alcoholic liquors in mini-bottles. Members or guests of members of these organizations may
consume alcoholic liquors sold in mini-bottles upon the premises between the hours of ten
o'clock in the morning and two o'clock the following morning.
12. In South Carolina, there is no single criterion by which to determine whether or not
one is possessed of good moral character. 1969 Op. S.C. Att'y. Gen. No. 2709 at 159. Generally,
good moral character means that one should possess all elements essential to make up that character,
such as honesty and veracity. Id.; See also Zemour, Inc. v. State Division of Beverage, 347 So.2d
1102 (Fla. Dist. Ct. App. 1977); Broers v. Montana Dept. of Revenue, 773 P.2d 320 (Mont. 1989).
13. Moral turpitude is "an act of baseness, evilness, or depravity in the private and social
duties which man owes to his fellow man or society in general, contrary to the customary and
accepted rule of right and duty between man and man." State v. Perry, 294 S.C. 311, 364 S.E.2d 201
(1988).
14. Although there is no single criterion by which to determine if a person is of good
moral character, commission of a crime involving moral turpitude implies the absence of good moral
character. 1969 Op. S.C. Atty. Gen. No. 2709 at 159; 1989 S.C. Op. Atty. Gen. No. 89-89 at 237.
None of the acts to which the petitioner pled guilty involved moral turpitude.
15. The petitioner is of sufficient moral character to be employed and be financially
involved in the social club to which the permit and license will be issued. He has not pled guilty to
acts or conduct that imply the absence of good moral character.
16. "Conviction of a crime does not, under all circumstances, constitute ineligibility for
a license . . . . In evaluating an applicant's fitness, consideration must be given to the circumstances
of any conviction record as well as to the extent to which rehabilitation has occurred." 48 C.J.S.
Intoxicating Liquors § 105 (1981 & Supp. 1995). Based upon the record established, petitioner has
the requisite moral character for the issuance of a beer and wine permit and the non-profit private
club mini-bottle license
17. S.C. Code Regs. 7-88 (1976), authorizing the imposition of restrictions to permits,
provides:
Any stipulation and/or agreement which is voluntarily entered into by an
applicant in writing for a beer and wine permit between the applicant and the South
Carolina Alcoholic Beverage Control Commission, if accepted by the Commission,
will be incorporated into the basic requirements for the enjoyment and privilege of
obtaining and retaining the beer and wine permit and which shall have the same
effect as any and all laws and any and all other regulations pertaining to the effective
administration of beer and wine permittees.
In the event that evidence is presented to this Commission that any part of the
stipulation or agreement is or has been knowingly broken by the permittee will be a
violation against the permit and shall constitute sufficient grounds to suspend or
revoke said beer and wine permit.
18. Permits and licenses issued by the State for 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).
19. 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).
21 I conclude that the Petitioner meets the statutory and regulatory requirements for
holding a beer and wine permit and a non-profit private club mini-bottle license at the proposed
location with restrictions.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the application of Sammie L. Green, Tabacco Road Enterprises, Black Jack
Finish Line for an on-premises beer and wine permit and non-profit private club mini-bottle license
for the Black Jack Finish Line social club located at 302 McKay Road, Timmonsville, Florence
County, South Carolina, is granted upon the petitioner signing a written agreement with the
Department to adhere to the stipulations that are set forth below:
1. Petitioner shall maintain proper lighting around the entire exterior of the building
containing the proposed social club. The lights must be on at sundown and remain on until closing.
2. Petitioner shall employ at a minimum one employee whose primary duties shall be
to patrol the area surrounding the building. The responsibilities of the employee shall include
assisting patrons/members in parking, preventing disturbances, public urination, selling or usage of
drugs or alcohol, and minimizing loitering and excessive noise.
3. As long as the Petitioner holds a permit or license at this location, the fence at the rear
of the location shall be maintained in good condition. Further, Petitioner shall construct a
structurally sound wooden fence or barricade along the property's boundary with Highway 76, with
no breaks or openings, sufficient to prevent vehicles from entering the property from that highway.
The only means for ingress and egress to the proposed location shall be from McKay Road.
4. Petitioner or his employees shall daily pick up any litter and debris from the
grounds/parking areas and from adjoining properties which is thrown thereon by members or patrons
of the club.
5. No speakers shall be installed on or around the exterior of the building at the location.
6. Petitioner shall not allow excessive noise to emanate from the location.
IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered
a violation against the permit and license and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department shall issue the permit and license only
after all necessary changes or additions to the property/building required by the above restrictions
are accomplished and after the required fees and costs are paid by the petitioner.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
August 7, 1997 |