SC Administrative Law Court Decisions

This matter comes before me on the application of Alfonzo Williams, Jr. for an on-premises beer and wine permit (AI 114386) and a nonprofit private club mini-bottle license (AI 114387) for the premises known as Bumbo's, located at 315 Main Street, Greenwood, South Carolina. After notice to the parties and protestors, a hearing was conducted on October 29, 1997.

Any issues raised or presented during the proceedings or hearing of this matter that are not specifically addressed in this Order are deemed denied. ALJD Rule 29(B).

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

1. Alfonzo Williams, Jr. is president of Bumbo's, a nonprofit corporation organized and existing under the laws of the State of South Carolina.
2. On April 9, 1997, Williams applied for an on-premises beer and wine permit (AI 114386) and a nonprofit private club mini-bottle license (AI 114387) for the premises known as Bumbo's and located at 315 Main Street, Greenwood, South Carolina. The application was protested by Greenwood City Police.
3. Williams is fifty-four years old and has been a resident of South Carolina and of the United States for at least thirty days prior to the date of application.
4. Williams is a person of good moral character. Williams became a bail bondsman in 1991, and previously served as a supervisor at Greenwood Mills. Further, Williams has supervised two licensed locations without suspension or revocation of their licenses.
5. Williams has not been convicted of any crime within ten years of the date of application.
6. Williams held the beer and wine permit and liquor license for Bumbo's from 1992 to 1995. The permit was never suspended or revoked.
7. Williams previously managed Bumbo's, a social club, from 1992 until 1995 and will manage the location if granted the permit and license. Its hours of operation are 10:30 p.m. to 3:30 a.m. on Friday, Saturday and holidays.
8. The proposed location at 315 Main Street is within the incorporated municipality of Greenwood and the heart of the downtown business community. Bumbo's is not located within 300 feet of any church, school or playground.
9. The Greenwood City Police protested the application on the basis of the business reputation and lack of police protection. The Chief of Police presented evidence of repeated criminal activity or disturbances at the location. The incidents involved disorderly conduct, numerous assault and battery incidents, theft, weapons violations, criminal domestic violence, and two incidents involving crowds of over 150 people. One of these incidents resulted in injury to a law enforcement officer requiring medical attention.
10. Although many of these incidents occurred outside of the building, the existence of the licensed location created and perhaps contributed to the resulting law enforcement problems. Bumbo's management has attempted to take reasonable efforts to run the club peacefully, for example, by calling for police assistance and hiring security, but the location has been plagued for years with approximately 30 incidents of criminal activity reported at the club in 1994 and 1995 during Williams' management.
11. In late 1996 and 1997, the location was operated as a licensed location by another person under another business name. The problems with law enforcement continued.
12. Bumbo's lacks a reputation for peace and good order in its community.
13. The police chief also testified of the lack of adequate protection for the location. There are 49 officers to patrol the city. The proposed location is within Zone 4, which covers 25% of the City. Within Zone 4, the proposed location is in the outer area approximately four miles from the zone boundary. The city limits of Greenwood has also expanded in recent years resulting in the annexation of 25 additional areas, including two schools, several businesses and housing developments. There has been an increase in calls for police by 15 to 20 percent.
14. Notice of the application was posted at the location and published in The Index-Journal, a newspaper published in Greenwood County, in the issues of April 10, 17 and 24, 1997.
15. An alcoholic liquor bond in the amount required has been obtained.
16. The location's history of criminal activity in recent years renders it unsuitable for both an on-premises beer and wine permit and a nonprofit private club mini-bottle license.

Based upon the 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 Administrative Law Judge Division has jurisdiction to hear 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.

1. 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.

1. S. C. Code Ann. Regs. 7-17 (Supp. 1996) sets forth the criteria for a bona fide nonprofit corporation to be eligible for a mini-bottle license. Bumbo's has complied with all these requirements in both its Articles of Incorporation and in its Constitution and By-Laws.
2. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of § 61-6-1820 are met. Besides the requirements contained in S.C. Code Ann. § 61-4-520, Section 61-6-1820 requires that the mini-bottle licensee be either a bona fide nonprofit

organization or conduct a bona fide business engaged primarily and substantially in food preparation and service or the furnishing of lodging.

1. S.C. Code Ann. § 61-6-120 (Supp. 1996) prohibits the issuance of a liquor license for on-premise consumption if the location is within 300 feet of any church, school or playground situated within a municipality. No churches, schools or playgrounds are found within the prescribed proximity to render the proposed location unsuitable.
2. 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. See Byers v. South Carolina 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.
3. 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 found. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered.
4. In considering suitability of location, it is relevant to consider the 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). 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. Id.
5. 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); see also Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (fact finder may consider whether "there have been law enforcement problems in the area").
6. The evidence clearly establishes that this business has had problems with law enforcement in the past. The character of the social club will be the same. Even though the applicant has offered certain restrictions (not allowing anyone under age 22 and closing at 2:00 a.m.) in order to obtain the license, these restrictions do not significantly affect the activity occurring outside of the building.
7. Considering all relevant factors, the proposed location is not a proper location for a beer and wine permit or 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).

ORDER

Based upon the Findings of Fact and Conclusions of Law, Alfonzo Williams, Jr. and Bumbo's are not entitled to an on-premises beer and wine permit and a club mini-bottle license. It is therefore,

ORDERED, that the Department of Revenue shall deny the Petitioner's application for an on-premises beer and wine permit (AI 114386) and nonprofit private club mini-bottle license (AI 114387) to Alfonzo Williams, Jr. for the premises known as Bumbo's, located at 315 Main Street, Greenwood, South Carolina.

AND IT IS SO ORDERED.

_________________________

ALISON RENEE LEE

Administrative Law Judge

November 21, 1997.

Columbia, South Carolina