SC Administrative Law Court Decisions

The Petitioner, Austin Gormley (Gormley) of 906 20th Avenue North, Cherry Grove, South Carolina, filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit and a sale and consumption license for 1025 Plantation Drive, Little River, South Carolina. J. Phillip Spruill 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 subject to restrictions.

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

III. Analysis

1. Positions of Parties:

Gormley asserts he meets the requirements of the statutes. DOR states that due to the protest, no permit or license could be granted, and it awaits the outcome of this hearing. The protestant asserts the proposed location is not proper.

2. Findings of Fact:

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

a. General

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

2. The applications are identified by DOR as AI # 114211 and AI # 114212.

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 1025 Plantation Drive, Little River, South Carolina.

4. The nature of the business is that of a restaurant.

5. The protesting entities included two homeowner associations identified as the Baytree Golf and Racquet Club and J. Phillip Spruill as the agent of the Golf Colony IX at Baytree Golf and Racquet Club.

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 September 24, 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.

c. Legal Resident and Principal Place of Abode

12. Gormley has resided in South Carolina since 1984.

13. Gormley holds a valid South Carolina driver's license.

14. Gormley currently resides at 906 20th Avenue North, Cherry Grove, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit and minibottle license.

15. Gormley is both a legal resident of the United States and South Carolina and 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.

d. Prior Revocation Of Beer or Wine Permit

16. Gormley has never had a beer and wine permit revoked.

e. Age

17. Gormley's date of birth is December 5, 1933.

18. Gormley is over twenty-one years of age.

f. Proposed Location

19. The proposed location seeks a permit and license for the sale of beer and wine and mini-bottles.

20. The proposed location will operate as a restaurant.

21. On June 19, 1997, Gormley signed an agreement with DOR that Gormley will comply with the requirements of § 61-6-20(2) and Regs. 7-19 as to operating as a restaurant.

22. In addition to meals, the proposed location will provide recorded music, sell snacks and offer video games.

23. The hours and days of operation will be a closing no later than 12:00 midnight Monday through Saturday with no Sunday hours.

24. Whether the building in which the restaurant proposes to operate can be used to sell beer and wine and minibottles is not a settled matter but is the subject of a contract dispute.

25. The disputed issues of who has a right to use the building and what uses are proper uses of the building are being litigated in the Court of Common Pleas in Horry County.

26. The disputes in the Court of Common Pleas and the dispute before the ALJD seek different relief, involve different issues, and are based upon different causes of action.

27. The proposed location is in a resort area in the Myrtle Beach vicinity.

28. The proposed location is located on a development known as Bay Tree Plantation which contains a total of 658 condominiums.

29. Within 75 to 100 yards of the proposed location are 194 condominiums.

30. The property immediately adjacent to the proposed location presents a fifty-four hole golf course.

31. Patrons of the course play on a fee-for-play basis with play open to the public at large.

32. The course is played extensively with at least 125,000 rounds of golf played each year.

33. The setting of the location and surrounding condominiums is not one of an isolated private community but rather, the area is extensively visited by the public.

34. For the majority of the condominiums, occupants are not long term residential occupants.

35. The majority of the condominiums are rental properties accommodating short term tenants attracted to the golf amenities and beach interests of the Grand Strand.

36. Many of the condominiums are investment properties.

37. No other residences are in the immediate area.

38. The proposed location is not within an improper proximity to the condominium residences.

39. Beer, wine and liquor are sold on the golf course itself.

40. The club house for the golf course provides beer, wine and minibottles in a setting similar to that which the applicant intends to provide.

41. Approximately 29 parking spaces serve the proposed location and ingress and egress to the area is adequately provided by Plantation Drive.

42. No churches, schools, or playgrounds are in the immediate area.

h. Notice

43. Notice of the Gormley application was published in the Sun News, a newspaper published and distributed in Horry County, with notice published on March 25, April 1, and April 8, 1997.

44. Notice of the Gormley application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Little River.

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

46. Gormley 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, 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. § 61-9-320 (Supp. 1996), no beer and wine permit may be granted unless the location of the place of business is a proper location. Additionally, in granting a mini-bottle license, consideration may be given to the suitability of the location. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

b. Basis For Decision

I have considered the relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. Considering the matter as a whole, granting the permit and license with restrictions is proper.

1. Disputed Use of the Building

The protestant asserts the building which will house the proposed restaurant cannot be used for liquor sales since to do so violates a contract of August 26, 1988 establishing permissible uses for the building. Based upon the alleged proposed improper use, the protestant argues the location is not proper. I find that the dispute over the uses of the building does not form a basis upon which to deny the permit and license.

In the instant case, what uses of the building are proper or improper is not a settled matter. Rather, the disputed issue of the proper uses of the building is the subject of litigation pending in the Court of Common Pleas in Horry County. Accordingly, no definite conclusion having been reached on the matter, the mere uncertainty of the use is not a sufficient basis for denial of the permit and license. Additionally, a delay in proceeding on Gormley's application until the Common Pleas matter is ended is not warranted. Even where a related matter is in litigation in another forum, the second forum will not normally stay its proceedings to await the outcome of the first forum. See Connecticut Nat. Bank v. Wilson, 284 S.C. 415, 326 S.E.2d 657 (1985) (stay not generally granted unless the actions are based upon the same causes of action, involve the same issues, and seek the same relief). Here, the actions in the two forums seek different relief (e.g., approval or denial of permit and license versus money damages), involve different issues (e.g., proper location versus easements running with the land), and are based upon different causes of action (right to administrative decision versus construction and enforcement of a contract.) Here, no sufficient reason justifies waiting for a resolution in the Common Pleas matter especially since that litigation is only in the initial pleading stage.

2. Circumstances of the Location

It is axiomatic that the proximity of a proposed location to residences within the area is a proper consideration when deciding the appropriateness of a location. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Reh'g denied September 4, 1991 Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). In this instance, the protestant asserts the immediate area (within 75 to 100 yards) houses 194 condominiums and the surrounding Bay Tree Plantation contains 658 condominiums. However, under the unique facts of this case, the proximity to the condominiums does not warrant denial of the permit and license.

Here, the proposed location is in a resort area in the Myrtle Beach vicinity. The immediate property adjacent to the proposed location presents a fifty-four hole golf course. Patrons of the course play on a fee-for-play basis with play open to the public at large. The course is played extensively with at least 125,000 rounds of golf played each year. Accordingly, the setting of the location is not one of an isolated private community. Rather, the area is extensively visited by the public.

Additionally, and equally as compelling, the condominiums in the vicinity of the proposed location do not represent the traditional long term residential community. Rather, the majority of the condominiums are rental properties used to accommodate short term tenants attracted to the golf amenities and beach interests of the Grand Strand. In fact, many of the condominiums have been purchased as investment properties and not as residential housing.

Further, a relevant factor is whether beer, wine and alcohol are already present through similar existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, the golf course provides beer and wine and liquor on portions of the golf course itself. Likewise, the club house provides beer, wine and minibottles in a setting similar to that which the applicant intends to provide.

Finally, when required, it is appropriate to impose restrictions. The granting of a beer and wine permit and the granting of a min-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. § 61-5-190 (Supp. 1996); 23 S.C. Code Regs. 7-88 (1976).

In this case, an underlying concern of the protestant is that the proposed location will not operate in the true nature of a restaurant. Addressing this concern, Gormley has signed a stipulation with DOR that he will fully comply with the statutory and regulatory "restaurant requirements." In order to further assure the protestant that a restaurant is the result of the Gormley application, the restaurant stipulation is also made a condition of this order granting the permit and license.

c. Conclusion

The unique characteristics of the proposed location in its setting as a golf resort along with the present existence of beer, wine, and alcohol in the immediate vicinity present a location suitable for a beer and wine permit and a minibottle license. Further, the nature of the business as a restaurant is not incompatible with the surrounding golf course, club house, and service nature of the area. However, to ensure that a restaurant operation is the result of the application, the applicant must comply fully with the statutory and regulatory requirements for a restaurant as established by § 61-6-20(2) (Supp. 1996) and Regs. 7-19.

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 will operate a business bona fide engaged primarily and substantially in the preparation and serving of meals. S.C. Code Ann. §§ 61-6-1820(1), 61-6-20(2) (Supp. 1996); Regs. 7-19.

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 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).

4. 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).

5. 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).

6. Consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

7. Geography alone is not the sole consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

8. The uncertainty of the use of a building that will house the proposed location is not a sufficient basis for denial of the permit and license.

9. A stay of one proceeding to allow a prior proceeding to reach a conclusion is not generally granted unless the actions in both forums are based upon the same causes of action, involve the same issues, and seek the same relief. See Connecticut Nat. Bank v. Wilson, 284 S.C. 415, 326 S.E.2d 657 (1985).

10. 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); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

11. The existence of other similar businesses in the area is a factor in reviewing a permit or license. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

12. Considering all relevant factors, the proposed location, with restrictions, 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 applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(8) and (9) (Supp. 1996); S.C. Code Ann. § 61-6-1820(4) and (5) (Supp. 1996).

14. The granting of a beer and wine permit and the granting of a min-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).

15. 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).

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 Gormley's application for an on-premises beer and wine permit and a sale and consumption license at 1025 Plantation Drive, Little River, South Carolina so long as Gormley complies with the June 19, 1997, agreement with DOR in which Gormley agrees to comply with the requirements of § 61-6-20(2) and Regs. 7-19 for operating as a restaurant.

IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 26th day of September, 1997

Columbia, South Carolina