ORDERS:
ORDER ON MOTION FOR RECONSIDERATION
I. Introduction
On January 26, 1998, the South Carolina Department of Revenue (DOR) was ordered to deny an
application by Timothy M. Finley (Finley) for a 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. Finley filed a Request for Reconsideration on February 6, 1998. DOR and Seawatch
Landing Horizontal Property Regime (Seawatch) oppose the request. After a careful review of the
case and the grounds for the requested reconsideration, the request is denied.
II. Analysis
The power to reconsider must not be used arbitrarily but rather should be exercised only when
justified by a demonstration of good cause such as that shown by newly discovered evidence, fraud,
surprise, mistake, inadvertence or change in conditions. Bennett v. City of Clemson, 293 S.C. 64,
358 S.E.2d 707 (1987). Here, Finley fails to establish a basis for reconsidering the original decision.
A. Restrictions Inappropriate
Essentially, Finley argues the evidence supports the imposition of restrictions but not a denial. For
example, Finley asserts the majority of the noise complaints resulted from ping-pong on the rear
patio, patrons using the rear parking lot, and bands playing on the premises in the early morning
hours. Finley suggests these noise concerns can be eliminated by restricting the permit and license
so that the rear patio may not be used after 11:00 p.m. This position is not new and is one already
rejected after due consideration.
1. Applicable Law
A decision to impose restrictions is a matter of discretion. See Feldman v. South Carolina Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). The exercise of discretion to either impose or refrain
from imposing restrictions is improper only when the determination is wholly without evidence to
support it. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). In this case, the evidence simply
does not support imposing restrictions.
At the original hearing, Finley made a clear, well presented, and forceful argument seeking the
imposition of restrictions and opposing a denial. I have already given significant consideration to
such a view. After carefully considering this case at the conclusion of the original hearing, I rejected
the imposition of restrictions in favor of a denial. The evidence convinced me then and still
convinces me that restrictions will not eliminate the problem.
2. Pertinent Evidence
Here, the evidence overwhelmingly shows that Finley continually disregarded both the law and the
pleas of his neighbors. Police were called to Finnstones repeatedly in response to noise violations.
However, neither citations nor fines stopped the offenses. Further, both management and guests of
the Seawatch constantly pleaded with Finley to stop the noise. To no avail, however, since the
testimony reflects Finley's lack of cooperation and, on at least one occasion, Finley's view that the
complaints were occasions for laughter. While certainly the testimony demonstrates some late effort
by Finley to reduce the noise by enclosing the patio, even that effort is countered by testimony that
such an act will in fact increase the noise.
On balance, the evidence of this case simply does not support restrictions. Local law enforcement
has not stopped the noise. Neighbors have not stopped the noise. Neither will restrictions. Rather,
given the past performance of Finley, restrictions would serve only to require the neighbors to place
yet another call to another law enforcement agency (SLED) in an effort to control noise.
Accordingly, restrictions are inappropriate here.
B. Denial Proper
Unquestionably, the denial is proper solely on the excessive noise basis. However, noise is not the
only basis for denial. Here, the denial is also based upon a demonstrated incompatibility of the
location with the surrounding community. While the excessive noise itself contributes to that
incompatibility, a major factor is management's lack of control of patrons. For example, even after
being repeatedly told to reduce the noise, Finley was apparently unable to control his patrons' noise
level since the noise continued. Additionally, the evidence demonstrates a further lack of control
since at least some of Finley's patrons were observed urinating in public. While an owner cannot
be expected to control all activities of the patrons, the history in this case shows an inability to
maintain activities compatible with the surrounding community.
III. Conclusion
Restrictions are not appropriate; the denial is proper, and no newly discovered evidence, fraud,
surprise, mistake, inadvertence or change in conditions have been shown of a degree sufficient to
grant the requested reconsideration. Accordingly, after a careful review of this case, the request for
reconsideration is denied.
IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
This 26th day of February, 1998.
Columbia, South Carolina |
