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:
Rickie Savage, d/b/a Chocolate City, Inc vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Rickie Savage, d/b/a Chocolate City, Inc

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0743-CC

APPEARANCES:
Laura A. Filler, Attorney for Petitioner

Arlene D. Hand, Attorney for Respondent
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) on the application of Rickie Savage, d/b/a Chocolate City, Inc., for an on-premises beer and wine permit and minibottle license for a private club at 511 Foster Street, Union, South Carolina. After notice to the parties, a hearing was conducted on March 23, 1998. Based upon the evidence presented, the beer and wine permit and minibottle license are GRANTED, conditioned upon certain restrictions. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(B).

FINDINGS OF FACT

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

1. Petitioner, Rickie Savage, submitted an application for an on-premises beer and wine permit and a nonprofit private club minibottle license with the South Carolina Department of Revenue ("DOR") on May 30, 1997, for the premises located at 511 Foster Street in Union, South Carolina.

2. Petitioner and Ralph Woodard have been leasing the proposed location from William Velasco since September 1, 1996.

3. The proposed location operates as a private club, Chocolate City, Inc. Petitioner, Kelvin Hardy, and Ralph Woodard incorporated Chocolate City, Inc., as a non-profit corporation, on May 16, 1997. The stated purpose of the organization is to provide and promote a club for social gathering, dancing and meeting of its members. Petitioner seeks the on-premises beer and wine permit and minibottle license to cater to the members of Chocolate City, Inc.

4. The proposed location has been licensed in the past on two separate occasions. 5. Petitioner has no criminal convictions and is a person of good moral character.

6. Petitioner is a legal resident of the United States.

7. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before applying for a permit and minibottle license.

8. Petitioner has never been cited for any violations of the alcoholic beverage control laws and he has never had a permit to sell beer and wine or alcoholic liquors suspended or revoked.

9. Petitioner is over twenty-one years of age.

10. Notice of application for the beer and wine permit and minibottle license was published in The Union Daily Times on May 22, 29, and June 5, 1997. Notice was also posted at the proposed location for the time period required.

11. Chief R.F. Roark, Union Chief of Police and Director of the Union Public Safety Department, has granted ten (10) temporary permits to Petitioner for the proposed location.

12. Chief Roark protests the application on the grounds that the proposed location is unsuitable because of its proximity to residences, and because of the noise, parking, and security problems that have recently occurred there. Chief Roark expressed concern over complaints from nearby residents about noise from 12:00 midnight until 4:30 a.m. and nearby streets and driveways being blocked due to inadequate parking at the club. Chief Roark also expressed concern over an incident involving the assault of a police officer on April 12, 1997 at the proposed location. Chief Roark maintains that the issuance of a permit would perpetuate these problems.

13. But for the protest filed, DOR would have issued the permit.

14. The proposed location is in an area containing both residences and businesses within a municipality.

15. A residential development, Cherokee Estates, is located approximately two-tenths of a mile from the proposed location. The nearest house in the development is 500 feet from the rear of the proposed location.

16. There is a playground located approximately two-tenths of a mile from the proposed location.

17. A church is located approximately four-tenths of a mile from the proposed location.

18. A junior high school is located approximately seven-tenths of a mile from the proposed location.

19. A small bar is located across the street from the proposed location.

20. The location now has from 50 to 100 parking spaces. Petitioner plans to hire a contractor to add from 70 to 100 additional parking spaces at the club.

21. Petitioner has hired local police as well as a private security firm to maintain necessary security at the club. Two off-duty police officers were available at the club during the April 12, 1997 incident to control the situation.

22. Petitioner will hire additional security to control noise at the club and to deter loitering in the parking lot and in the street.

23. Petitioner plans to use a device to count admission tickets to prevent overcrowding at the club.

24. Either Petitioner or Ralph Woodard will personally manage the club during its operating hours.

25. The club will open at 9:00 p.m. on Thursdays, Fridays and Saturdays. Petitioner is willing to close the club by 2:00 a.m. on the mornings following Thursday and Saturday openings. Petitioner is willing to close the club by 2:30 a.m. on the mornings following Friday openings. Petitioner has previously allowed the club to stay open until 4 a.m.

26. Chief Roark previously protested the issuance of a beer and wine permit for the same location, but withdrew his protest upon the operator's agreement to close the location by 2:00 a.m. each business day.

27. With certain conditions, the location is suitable for the sale of beer and wine and other alcoholic beverages for on-premises consumption. Appropriate conditions are 2 a.m. closings of the club and the addition of parking space adequate to prevent on-street parking.

CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude as a matter of law, the following:

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997), S.C. Code Ann. § 1-23-600(B) (Supp. 1997) and S.C. Code Ann. § 1-23-310 (Supp. 1997).

2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]" Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. South Carolina 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 the suitability of the location.

4. S.C. Code Ann. § 61-6-1820 (Supp. 1997) establishes the criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in this statute as a condition of licensing, such a consideration is proper. Schudel v. South Carolina ABC Comm'n, 276 S.C 138, 276 S.E.2d 308 (1981).

5. As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location 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). Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

6. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).

7. While proximity of a church, residence, playground, or school to a proposed location by itself may be adequate grounds for denial of a beer and wine permit, there is no minimum distance requirement. See S.C. Code Ann. § 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

8. Chief Roark tried to demonstrate through witness testimony that the proposed location is not suitable because the surrounding area is now zoned for residential use only, and the proposed location would not be allowed as a nonconforming use. Whether the club is in compliance with the local zoning ordinances is a matter left to the local authorities. As a general rule, courts will not interfere with, or control or supervise, acts of a municipal corporation, nor will they substitute their judgment for that of the proper municipal authorities. 62 C.J.S. Corporations §199 (1949). Chocolate City, Inc. was approved as a dance club by the building official for the City of Union. If Petitioner commits an error or violation of the conditions of any permits other than those at issue in this litigation, resolution of those issues is left for the local authority issuing the permit.

This Division will not interfere in these purely local issues and will not make findings of fact relating to those matters especially when the City of Union has not had an opportunity to specifically address this issue.

9. For purposes of determining whether to issue a beer and wine permit and minibottle license, the location is suitable with the following restrictions: (1) Petitioner shall increase available parking spaces on the premises so that patrons do not resort to on-street parking and (2) Petitioner shall operate the club only on Thursdays, Fridays and Saturdays, closing by 2:00 a.m. on the following mornings.

10. The applicant meets all other statutory requirements for the issuance of an on-premises beer and wine permit and minibottle license.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of Rickie Savage for an on-premises beer and wine permit and a minibottle license for Chocolate City, Inc., 511 Foster Street, Union, South Carolina, is GRANTED, conditioned upon the following restrictions:

1. Petitioner shall open the club only on Thursdays, Fridays and Saturdays and he shall close the club by 2:00 a.m. on the following mornings.

2. Petitioner shall increase the parking spaces on the premises so that patrons do not resort to on-street parking.

The Department shall issue an on-premises beer and wine permit and minibottle license subject to the above conditions, upon the payment of the appropriate fees.

AND IT IS SO ORDERED.





___________________________

ALISON RENEE LEE

Administrative Law Judge



April ____, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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