ORDERS:
FINAL 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 Donna W. McAllister, Edge, Inc., d/b/a The Edge
("Applicant" or "Petitioner") for renewal of an on-premises beer and wine permit (AI 102840) and
an business sale and consumption ("mini-bottle") license (AI 102841) for the premises located at
2170 West Palmetto Street, Florence, Florence County, South Carolina ("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 Vicky R. Zelenka, President of the Country Club Forest
Neighborhood Association. Appearing at the hearing and testifying in opposition to the renewal of
the permit and license were Vicky R. Zelenka, her husband, John Paul Zelenka, James Kinley
McKenzie, Jr., and Juliet P. LaMance, all of whom reside in the neighborhood behind the location.
Robert Lee Ross, Florence City Assistant Chief of Police, also appeared and testified. The South
Carolina Department of Revenue ("Department"), as set forth in the agency transmittal form and
Motion to Be Excused, stated it would have reissued the permit and license to the Petitioner except
for the filed protest. The Department's Motion to Be Excused from appearing at the hearing was
granted.
Upon review of the relevant and probative evidence and applicable law, the renewal
applications for the on-premises beer and wine permit and the business sale and consumption ("mini-bottle") license are denied.
EXHIBITS
Those certified copies of documents forwarded to the Administrative Law Judge Division
file from the Department were made a part of the record. However, no probative weight is given to
any "petitions" or "letters" contained in the Department's file from individuals who were not present
at the hearing.
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 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 protestants.
3. The Petitioner presently holds an on-premises beer and wine permit (AI 102840) and
a business sale and consumption ("mini-bottle") license (AI 102841) issued by the Department
authorizing the sale and consumption of beer, wine and liquor at the location. Petitioner is seeking
renewal of the permit and license from the Department to sell beer and wine and liquor for on-premises consumption at the location at 2170 West Palmetto Street, Florence, Florence County,
South Carolina, for a nightclub called The Edge.
4. The applicant originally filed an application with the Department in 1995 for the
permit and license which was issued.
5. Donna W. McAllister was born on September 12, 1964 and is 32 years of age. She
is a resident and citizen of the state of South Carolina and has been for more than thirty days prior
to the filing of the renewal of the application. She is of good moral character.
6. As a result of complaints from residents living in the Country Club subdivision of the
loud noise originating from the club, the petitioner purchased digital sound meters for the club,
installed insulation and several layers of sheetrock and carpet on the inside of the rear wall, and has
rebuilt the stage. Further, in the spring of 1997(approximately April), she hired a sound engineer
to help control and minimize the sound.
7. Henry Lee Herron, aged 21, is the manager of the club and supervises its 15 to 20
employees. He has been employed at the club since its opening approximately two years ago.
8. The club has three bouncers who take turns walking through the parking area every
30 minutes to an hour. Also, the club has two employees who are stationed at the main entrance
checking the age of patrons as they enter to ensure they are twenty-one years of age. If they are
under that age, they are allowed inside but are stamped to identify them as underage individuals for
purposes of purchasing alcoholic beverages.
9. The hours of operation of the club are from 4:00 p.m. until 2:00 or 2:30 a.m., Monday
through Friday (until business closes down) and from 5:00 p.m. until 12:00 a.m. on Saturday. The
club is closed on Sunday.
10. A live band starts playing around 11:00 p.m. and continues until around 2:00 to 2:30
a.m. on Thursday, Friday and Saturday nights.
11. Employees, when hired, are required to read a handbook on ABC rules and
regulations governing the sale of beer, wine and alcoholic beverages to customers. They are required
to sign a statement that they have read the handbook.
12. Since the opening of The Edge, there have been two violations of S.C. Code
Regulation 7-9.B. by its employees/bartenders: (1) by permitting the purchase or possession of beer
by a person under the age of twenty one (21) years of age on September 27, 1995; and (2) by
permitting the purchase or possession of beer by a person under the age of twenty one (21) years of
age on December 28, 1996.
13. On the evening of November 8, 1996, an individual was arrested at the club by
Florence city police after making a physical threat with something in his jacket to another at the club.
The individual had a loaded (six bullets in the magazine) 9 mm pistol in his jacket when the threat
was made.
14. During the period from November 21, 1995 through April 17, 1997, there have been
four trespassing incidents at the club. From May 20, 1995 through March 21, 1997, there have been
eight (8) incidents and reports made to the city police of vandalism to vehicles at the club. Further,
on April 6, 1996, simple possession of marijuana and breach of peace charges were made to
individuals fighting both inside and outside the club.
15. Numerous calls have been made by residents living in the Country Club subdivision
to the Florence police department about the loud noise coming from the club. Also, numerous
complaints have been made to the owners and management of the club. When police officers have
visited the residences of the complainants, they have noticed light fixtures on the exterior of the
residences shaking from the bass sounds coming from the club and have heard the noise inside the
residences. Management would turn the music down when requested or told to do so by the police;
however, the problem has persisted since management has continued to keep the music going at a
high level. Many of the residents are unable to sleep at night because of the loud noises coming from
the live music at the club.
16. One protestant, James K. McKenzie, Jr., a law enforcement officer, lives with his
wife and two children, aged 12 and 7, at 2160 Hart Road, approximately 250 yards from the location.
After the club opened and as a result of the loud noise emanating from the location and the inability
to sleep, Mr. McKenzie renovated his home, moving his bedroom from one end of the house to the
other. However, the bedrooms of his two children are at the end of the home closest to the club and
they have problems sleeping.
17. Another protestant, Juliet P. LaMance, a registered nurse, who lives alone at her home
located at 2112 Hart Road, gets up every morning between 4:30 and 5:00 a.m. to go to her
workplace. She feels harassed by the loud music and is unable to go to sleep at night. During the
calendar year 1996, she made four calls to the police department complaining about the loud noise
coming from the club.
18. At least four charges of nuisance or violation of Noise Ordinance 10-9 of the city of
Florence have been made by residents against the club. All have resulted in convictions, the latest
in a guilty verdict on July 28, 1997, with a fine of $500.00 or service of thirty (30) days being
imposed on Henry Lee Herron.
19. There are two doors at the rear of the club. On occasion, when the temperature gets
hot inside, management will allow the doors to be opened while the music continues.
20. Carlos Webb, a sound engineer who has worked in clubs and with bands for some
twenty (20) years, opined that nothing further can be done at the club to minimize the noise level.
21. The club is located in a mixed commercial and residential area. All the locations
fronting on West Palmetto Street in the general area of the club are commercial. Along its rear
boundary there is a strip of land owned by the city which separates the club from Hart Road. Across
Hart Road are the residences of the various protestants. See Petitioner's Exhibit # 2.
22. Although the petitioner stated on the application as filed with the Department in
1995 that the permit and license were being requested for a restaurant, from its opening to the present
the business has functioned as a nightclub and bar.
23. The contentions of the protestants that the renewal of the permit and license will
detrimentally affect the well-being of the community and the residents of Country Club subdivision
is supported by the evidence in the record.
CONCLUSIONS OF LAW
Based on 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. § 61-4-520 (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.
3. 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. S.C. Code Ann. § 61-6-20 (2) and (3) (Supp. 1996), which defines a bona fide
business engaged primarily and substantially in the preparation and serving of meals or furnishing
of lodging, read 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.
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 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-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.
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).
9. 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 protestants and the Florence City Assistant Chief of Police presented factual evidence, in
the way of testimony and police incident reports, of the excessive noise and violations of city
ordinances over a lengthy period of time. The petitioner has consistently disregarded the rights of
citizens in the neighborhood to live and enjoy their homes in peace. The proximity of the location
to nearby residences resulting in these complaints and violations convinces this court that the
appropriate action to take is to deny the renewal for the permit and license.
Further, it appears that the club is not functioning as a restaurant as required by S.C. Code
Ann. § 61-6-1820. This section authorizes the issuance of a liquor license only if the business is
bona fide engaged primarily and substantially in the preparation and serving of food or, in the
furnishing of lodging. This business is primarily functioning as a nightclub.
To allow this business to obtain a renewal of the permit and license would be a detriment and
liability to the community. The evidence is overwhelming that the renewal of the permit and license
would greatly impact property values in the neighborhood and increase stress in terms of the safety
and well-being of the residents. Further, there is overwhelming evidence that this club has been
a constant source of problems for local law enforcement.
10. Permits and licenses issued by the State for the 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).
11. For all of the reasons stated above, I conclude that the applicant has not met her
burden of proof in showing that she meets all of the statutory requirements for holding a retail beer
and wine permit and a business sale and consumption ("mini-bottle") license as a restaurant at the
location at 2170 West Palmetto Street, Florence, South Carolina. I further conclude that the location
is not a proper one for the renewal of the permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the request by Donna W. McAllister, Edge, Inc., d/b/a The Edge, for a
renewal of its on-premises beer and wine permit and its business sale and consumption ("mini-bottle") license at 2170 West Palmetto Street, Florence, Florence County, South Carolina, is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
August 25, 1997 |
