ORDERS:
ORDER AND DECISION
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997)
and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1997) for a hearing on Petitioner's
application for an on-premises beer and wine permit and a sale and consumption license for the
Midnight Lounge, Inc., a non-profit organization.
After timely notice to the parties and protestants, a hearing was held at the Administrative
Law Judge Division on February 23, 1998.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make
the following Findings of Fact by a preponderance of the evidence:
- Petitioner Ronald I. Paul seeks an on-premises beer and wine permit and a sale and
consumption (minibottle) license for the Midnight Lounge, Inc., a non-profit, private club located
at 2305 Taylor Street, Columbia, South Carolina. The area in which the club is situated is
commercial. However, there are schools and residences in the immediate vicinity. Allen University
is 174 feet away, Benedict College is 342 feet away, and St. Martin de Porres Catholic School is 412
feet away.
- The Secretary of State certified the club as a non-profit organization duly organized
under the laws of the State of South Carolina on January 10, 1994. The club's officers adopted by-laws which limit membership, and the club is not open to the general public. Further, the club was
organized for social, recreational, or fraternal purposes.
- The State Law Enforcement Division completed a criminal background investigation
of Petitioner which revealed no criminal convictions. Further, the record in this matter does not
indicate that Petitioner has engaged in acts or conduct which imply the absence of good moral
character. However, the Midnight Lounge does not have a reputation for peace and good order in
the community.
- Petitioner is at least twenty-one years of age, a U.S. citizen, a citizen of the State of
South Carolina, and has maintained his principal residence in the State for at least thirty days prior
to the date of making application for the permit and license.
- Petitioner has not had a beer and wine permit or alcoholic liquors license revoked
within two years of the date of his application.
- Notice of his application appeared in The State, a newspaper of general circulation
in the area of the proposed location at least once a week for three consecutive weeks. Additionally,
notice was posted at the proposed location for fifteen days.
- The club has had a number of incidents and disturbances involving fights and gunfire
since 1995. See Court's Exhibit # 1. The area in which the club is located has a high rate of crime.
See Court's Exhibit # 2.
- Petitioner voluntarily agreed to additional security measures and restrictions on the
days and hours of operation.
- The Department and protestants oppose the issuance of the permit and license because
of the proposed location's proximity to the schools and the history of violent activity occurring at
the club.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- S.C. Code Ann. § 61-2-260 (Supp. 1997) authorizes the South Carolina
Administrative Law Judge Division to hear this case.
- S.C. Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the issuance of
a beer and wine permit. Included among the factors for consideration is suitability of the location.
- S.C. Code Ann. § 61-6-1820 (Supp. 1997) establishes the criteria for the issuance of
a minibottle license. Among the criteria is whether the corporation or association has a reputation
for peace and good order in its community.
- Although "proper location" is not statutorily defined, broad discretion is vested in the
Administrative Law Judge Division, as the trier of fact, in determining the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
- 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. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984).
- 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 located. Kearney
v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. South Carolina ABC Comm'n, 276 S.C.
138, 276 S.E.2d 308 (1981).
- In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). See also Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
- "A liquor license or permit may properly be refused on the ground that the location
of the establishment would adversely affect the public interest, that the nature of the neighborhood
and of the premises is such that the establishment would be detrimental to the welfare . . . of the
inhabitants, or that the manner of conducting the establishment would not be conducive to the
general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).
- The proposed location is unsuitable because the permit and license would likely
worsen the situation at a location with a record of frequent criminal disturbances in a community that
already has high incidents of criminal activity. See Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191
(1973).
ORDER
Based upon the Findings of Fact, Discussion, and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premises beer and wine permit and sale and
consumption license for The Midnight Lounge located at 2305 Taylor Street, Columbia, South
Carolina is denied.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 292211-1667
March 17, 1998
Columbia, South Carolina |
