SC Administrative Law Court Decisions

The Petitioner, Timothy M. Finley (Finley) filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for a renewal of an on-premises beer and wine permit and a business sale and consumption (mini-bottle) license for 213 Atlantic Avenue, Garden City, South Carolina. Protests to the renewal were filed by Seawatch Landing Horizontal Property Regime seeking to prevent DOR from granting the permit and license. DOR refused to renew either the permit or the license. Jurisdiction vests in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1997). The evidence and relevant factors require denying the renewal of both the permit and the license.

Does Finley meet the requirements for the renewal of an on-premises beer and wine permit and business sale and consumption (mini-bottle) license?

III. Analysis

1. Positions of Parties:

Finley asserts he meets the statutory requirements. DOR and the intervenor state the renewal is not proper since the continuous and unabated noise accompanied by uncontrolled patrons renders the location improper.

2. Findings of Fact:

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

a. General

1. On or about April 24, 1997, Finley filed a renewal application with the Department of Revenue for an on-premises beer and wine permit and business sale and consumption (mini-bottle) license.

2. The application is identified by DOR as Renewal for License SB740390 and Renewal for Permit BW740389.

3. The proposed business location and the place where the permit and license are utilized is 213 Atlantic Avenue, Garden City, South Carolina.

4. The permit and license are used in a cafe and pub which operates under the name of Finnstones.

5. A protest to the application was filed by the adjacent property owners, the Seawatch Landing Horizontal Property Regime.

6. DOR denied the permit and license.

7. The hearing was held November 4, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the intervenor.

b. Moral Character

8. The applicant's actions and conduct do not imply the absence of good moral character.

9. The applicant is of good moral character.

c. Legal Resident and Principal Place of Abode

10. Finley is a legal resident of the United States and South Carolina, has 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

11. Finley has not had a beer and wine permit revoked.

e. Age

12. Finley is over twenty-one years of age.

f. Location

13. The location has been the subject of numerous complaints by nearby property owners in the Seawatch Inn with the consistent complaint being excessive noise from the establishment known as Finnestones.

14. Guests at the Seawatch Inn have been forced to sleep in the living rooms of their units to avoid the noise.

15. Sales of units have been lost due to the noise at Finnstones.

16. Repeat visits of prior guests at the Seawatch Inn have been lost due to the noise created by the location.

17. Police have been called to Finnstones on numerous occasions in response to noise complaints.

18. Employees and management of Finnstones have been cited and fined several times for violating the Horry County noise ordinance.

19. At various times of the year, the location operates until 5:00 a.m. at least three nights a week and on many occasions generates excessive noise until closing time.

20. Complaints made by the management of the Seawatch Inn have been treated as "jokes" by the operators of Finnstones.

21. Complaints from neighbors or citations from the police have not halted the noise abuse.

22. The location presents a severe noise problem.

23. Finnstones's management exerts very little control over patrons on the premises.

24. Patrons urinate in public in the small parking area behind Finnstones.

25. One Finnstones's patron made threats against guests staying at the Seawatch Inn who had allegedly called police to complain about the noise.

3. Discussion

a. General

DOR is empowered to grant or deny renewal requests for licenses and permits. S.C. Code Ann. § 61-2-80 (Supp. 1997). Further, members of the public may protest a renewal request. See S.C. Code Ann. Regs. 7-90 (a protest of a renewal of a beer and wine or liquor license must be timely filed). Here, both DOR and the owners of property near the renewal location seek to deny the renewal applications.

As to the minibottle license, DOR may refuse to renew a minibottle license if the applicant no longer meets the requirements of § 61-6-1820 (Supp. 1997). S. C. Code Ann. § 61-6-1830. Likewise, a party may not hold a beer and wine permit without satisfying the statutory requirements. S.C. Code Ann. § 61-4-520 (Supp 1997). Accordingly, the issue is whether the applicant meets the requirements for a beer and wine permit and for a minibottle license. Viewing the evidence as a whole, no renewal is proper.

b. Excessive Noise and Uncontrolled Patrons

Under S.C. Code Ann. § 61-4-520 (Supp. 1997), no beer and wine permit may be granted unless the location of the place of business is a proper location. As to a mini-bottle license, even if the location is not subject to nor within the distance restrictions associated with schools, churches, or playgrounds (See § 61-6-120 (Supp. 1997)), the location must still be suitable. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

In deciding suitability, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. South Carolina 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 (such as noise) must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985) (a building converted to a country-western, lounge-restaurant was denied a permit and license due to noise associated with operating at 2:00 a.m. with live music near residences). In the final analysis, a location is improper if the establishment will adversely affect the public interest, the welfare of the inhabitants of the area, or the nature of the neighborhood due to the manner in which the establishment will conduct its activities. 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). Finally, in deciding the impact of a location, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

For this action, the basis for the denial by DOR and the basis for the challenge by Seawatch Inn is the excessive noise and Finnstones's lack of control of its patrons. Nearby property owners in the Seawatch Inn complain that for a significant part of the year unabated noise emanates from Finnstones's until 5:00 a.m. three nights a week or more. The degree and extent of the noise and actions of patrons are well documented.

Guests at the Seawatch Inn have been forced to sleep in the living rooms of their units to avoid the noise; sales of units have been lost due to the noise at Finnstones; repeat visits from prior guests have been lost, and police are called for excessive noise on a frequent basis. On several occasions, employees of Finnstones have been cited and subsequently fined for violations of the noise ordinance of Horry County. More noteworthy than the several noise ordinance violations is the fact that police have responded to dozens of complaints for excessive noise at Finnstones but have chosen to issue a verbal warning instead of a written citation.

Further, this is not a circumstance in which complaints from neighbors or citations from the police have halted the noise abuse. The evidence shows that complaints made by the management of the Seawatch Inn have been treated as "jokes" by the operators of Finnstones. For example, on at least one occasion, a complaint from Seawatch Inn management was greeted by Finnstones management with an increase in noise and a comment that "the bitch from Seawatch is calling again." Police citations have done little to abate the noise. Rather, testimony of at least one police official is that noise control at the location is a "severe problem."

The noise problem is compounded by the lack of control that Finnstones's management exerts over its patrons. For example, the evidence shows that patrons urinate in public in the small parking area behind Finnstones. Additionally, police reports demonstrate that on at least one occasion, a Finnstones patron made threats against guests staying at the Seawatch Inn for allegedly calling the police to complain about the noise.

The noise abuse and inability to control patrons renders the location unsuitable. Accordingly, the renewals are denied.

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 possesses good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1997); S.C. Code Ann. § 61-6-1820(2) (Supp. 1997).

2. 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. 1997); S.C. Code Ann. § 61-6-1820(7) (Supp. 1997).

3. 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. 1997).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1997); S.C. Code Ann. § 61-6-1820(6) (Supp. 1997).

5. No beer and wine permit may be granted unless the location of the place of business is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1997).

6. Even if the distances required by the "no-alcohol-zone" statutes are not applicable or are satisfied, a mini-bottle license may still be required to satisfy the criteria of being a proper location. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7. To decide what is a "proper location," in general terms, the fact-finder has "broad discretion . . . to determin[e] the fitness or suitability of a particular location." Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

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

9. 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).

10. Law enforcement considerations are valid considerations in granting a permit or license. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

11. A location is improper if the establishment will adversely affect the public interest, the welfare of the inhabitants of the area, or the nature of the neighborhood due to the manner in which the establishment will conducts its activities. 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).

12. The combination of the presence of excessive noise and the lack of control over patrons creates an establishment unacceptable to the general welfare of the community.

13. 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. 1997); S.C. Code Ann. § 61-6-1820(3) (Supp. 1997).

14. The application does not qualify for a renewal of its beer and wine permit and does not qualify for a renewal of its minibottle license. S.C. Code Ann. § 61-4-520 (Supp. 1997); S.C. Code Ann. § 61-6-1820 (Supp. 1997).

DOR is ordered to deny Finley's application for renewal of its on-premises beer and wine permit and business sale and consumption (mini-bottle) license for 213 Atlantic Avenue, Garden City, South Carolina.

IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 26th day of January, 1998.

Columbia, South Carolina