South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Cassandra D. Chestnut, Club Images, d/b/a Club Images vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Cassandra D. Chestnut, Club Images, d/b/a Club Images

Respondents:
South Carolina Department of Revenue

Intervenors:
lmore A. Bellamy, L. B. Brant, Edna C. Bryant, Frances Bryant, James Bryant, Brenda S. Bankhead, Fennie M. Livingston, Pearl Ford, William H. Dewitt, Annie Chestnut, Mary Ellen Page, Audrey Dewitt, Eleanor Moore, Mary Livingston, Collins L. Moore, Essie Bellamy, and Donnie Livingston,
 
DOCKET NUMBER:
97-ALJ-17-0402-CC

APPEARANCES:
James H. Harrison, Esq., for Petitioner

Arlene D. Hand, Esq., for Respondent, Excused from Appearance

Elmore A. Bellamy, pro se, and Brenda S. Bankhead, pro se, for Intervenors
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Cassandra D. Chestnut, d/b/a Club Images (Chestnut), of 2298 Hummingbird Lane, Longs, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit and a sale and consumption (minibottle) license for 3636 Highway 90, Longs, South Carolina. Numerous residents of the area filed protests 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 minibottles, 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). See § 61-2-260 (Supp. 1996). The relevant factors require denying the pemit and license.

II. Issue


Does Chestnut meet the requirements for an on-premises beer and wine permit and a minibottle license?

III. Analysis

1. Positions of Parties:

Chestnut asserts she meets the requirements of the statutes. DOR states that due to the protest, no permit could be granted and that it awaits the outcome of this hearing. The intervenors assert that the proposed location is not proper and that the permit should be denied.

2. Findings of Fact:

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

a. General

1. Chestnut filed an application with the DOR for an on-premises beer and wine permit and a minibottle license.

2. The applications are identified by DOR as AI # 113262 and AI # 113263.

3. The proposed location of the business and the place where the beer and wine permit and the minibottle license will be utilized is 3636 Highway 90, Longs, South Carolina.

4. The nature of the business is that of a private club.

5. Protests to the application were filed by numerous residents of the area.

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 4, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the intervenors.

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.

12. The corporation, Club Images, was established with Chestnut as the incorporator.

13. The applicant as an individual and as a principal of the corporation is of good moral character.

c. Reputation For Peace and Good Order In The Community

14. The corporation, Club Images, was established in February 1997.

15. The corporation has not created a lack of peace nor has it created disorder in the community.

16. The reputation of Club Images, is one of peace and good order in the community.

d. Legal Resident and Principal Place of Abode

17. Chestnut has resided in South Carolina since 1996.

18. Chestnut holds a valid South Carolina driver's license.

19. Chestnut currently resides at 2298 Hummingbird Lane, Longs, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

20. Chestnut 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.

e. Prior Revocation Of Beer or Wine Permit

21. Chestnut has never had a beer and wine permit revoked.

f. Age

22. Chestnut's date of birth is September 10, 1968.

23. Chestnut is over twenty-one years of age.

g. Proposed Location

24. From 1986 until 1992 the proposed location was operated with an on-premises beer and wine permit by a previous owner.

25. The permit was suspended twice and finally revoked in February of 1992 for violation of alcohol laws.

26. From June of 1992 until May of 1997, a former owner operated the proposed location as a private club with an on-premises beer and wine permit and a minibottle license with no suspensions or revocations due to alcohol laws.

27. During the prior owners' operation from 1992 to 1997, a murder occurred at the location on October 8, 1994.

28. Just as the former owner did, Chestnut will operate a private club.

29. Closing hours from Wednesday through Saturday will be at 2:00 a.m

The club building is a cinder block building with a total square footage of 800 square feet.

31. The club will have no pool tables, or video games, but will have recorded music.

The Sportsman Club, a club approximately 500 feet from the proposed location and similar in nature to Club Images, holds a beer and wine permit and a minibottle license.

A grocery store, a night club, and a barber shop/hair salon are within 500 feet of the proposed location.

At least eleven residences are in the immediate area of the proposed location with other residences in the surrounding area.

Several residences are within 200 feet of the proposed location

Many of the residents in the area are elderly.

The area is predominately residential.

The proposed location is within an improper proximity to residences in the area.

The general area has been plagued by drugs, shootings and violent crime.

Residents of the area have had shots fired into their residences.

The closing of a former establishment known as the Live Oak has lessened crime in the area, but the current community still suffers from a significant presence of crime.

The presence of the club will not improve the community.

h. Notice

43. Notice of the Chestnut application was published in the North Myrtle Beach Times, a newspaper published and distributed in Horry County, with notice published on February 20, 1997, February 27, 1997, and March 6, 1997.

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

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

46. Chestnut gave notice of the application by way of required advertising by newspaper and display of signs.

3. Discussion

a. General Criteria

The issue here is whether the proposed location is proper, and no dispute exists as to any other element for obtaining a beer and wine permit or a minibottle license. Under S.C. Code Ann. § 61-4-520 (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 minibottle license it is proper to consider 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 on Improper Location

I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. Considering the case as a whole, the permit and license must be denied.

The proximity of a location to residences is a proper consideration. 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). Here, the area is essentially a residential community with the not uncommon commercial establishments of a barber/beauty salon and a grocery store. The area is not compatible with the club sought here. The club will not close until 2:00 a.m., and several residences are within 200 feet of the club. The congregation of members during the early morning hours at a club located close to residences presents an environment not conducive to establishing a proper location for beer, wine or minibottles. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

Where crime is a factor, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). In a similar vein, an important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

Here, the community in the which the location seeks to operate has in the past been plagued with a significant degree of violent crime. That condition continues to the present. A knowledgeable representative of the Horry County Sheriff's Department recounted the history of the area as one filled with drugs, shootings and violent crime. While the Sheriff's representative was short on specific events, his years of experience make his general characterization of the area persuasive. Likewise, no one disputes that at least one murder occurred at the proposed location in 1994 and that residents of the area have had bullets fired into their homes. While the closing of the Live Oak has to some degree lessened the crime in the area, the Sheriff's representative expressed concern that crime was still a problem and would be exacerbated by the presence of the club. When all factors are weighed, the proximity to residences, the nature of the late night and early morning club operation, and the underlying presence of violent crime in the area render the proposed location improper.

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 intends to operate a bona fide nonprofit organization. S.C. Code Ann. § 61-6-1820(1) (Supp. 1996).

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 corporation has a reputation for peace and good order in the community. S.C. Code Ann. § 61-6-1820(2) (Supp. 1996).

4. 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).

5. 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).

6. 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).

7. The applicant's location is not suitable and is not a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

8. Consideration must be given to whether the granting of the permit and license will have an adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9. The proximity of a location to residences is a proper consideration. 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).

The congregation of members during the early morning hours at a club located close to residences presents an environment not conducive to establishing a proper location for beer, wine or minibottles. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

Where crime is a factor in a community, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

Considering all relevant factors, the proposed location is not a proper location for a beer and wine permit or for a minibottle license. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); S.C. Code Ann. § 61-6-1820(3) (Supp. 1996).

The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(7) and (8) (Supp. 1996); S.C. Code Ann. § 61-6-1820(4) and (5) (Supp. 1996).

The applicant does not meet the requirements for the issuance of a minibottle license pursuant to S.C. Code Ann. § 61-6-1820 (Supp. 1996).

The applicant does not meet the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1996).



IV. ORDER


DOR is ordered to deny Chestnut's application for an on-premises beer and wine permit and a sale and consumption license at 3636 Highway 90, Longs, South Carolina.

IT IS SO ORDERED.



RAY N. STEVENS

Administrative Law Judge

This 7th day of October, 1997.

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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