SC Administrative Law Court Decisions

This matter comes before this tribunal pursuant to S.C. Code Ann. section 61-2-260 (Supp. 1997) and S.C. Code Ann. sections 1-23-310, et seq. (Rev. 1986 & Supp. 1997) for a hearing on Petitioner's renewal application for an on-premises beer and wine permit and sale and consumption license (minibottle) for a private club.

After notice to the parties and protestant, a hearing was held at the Administrative Law Judge Division on May 6, 1998.

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.

In this case, Petitioner Jimmy G. Manos seeks the renewal of his on-premises beer and wine permit and minibottle license for Club Millenium, a private club located at 1117 Cedar Lane Road, Greenville, South Carolina. Petitioner purchased the property in November of 1997 and opened the following month. Before Petitioner purchased the property, it was operated for five years as a private club known as Cowboys.

Petitioner's club is currently open on Friday from 8:00 p.m. to 12:00 p.m. for "teen night," and on Saturday from 9:00 p.m. to 3:00 a.m. No alcohol is served on Friday night. The club is also open on special occasions, usually once a month.

The club is situated in a commercial area in a strip-mall. A residential neighborhood is located within one hundred seventy-five feet to the rear of the club. Several residents of this neighborhood objected to the renewal of Petitioner's permit and license because of repeated disturbances resulting from music emanating from Petitioner's club. They have filed dozens of complaints with the Greenville County Sheriff's Department about the club. Delma Lord, a resident of the neighborhood and community representative, testified that although the volume of the music is not objectionable, the residents do object to the bass tones and the vibrations resulting from the music, especially during the early morning hours. In contrast, Mr. Lord testified that the community is not disturbed by another club located in the same strip mall as Petitioner's which plays "heavy metal" music.

Based on the testimony in this case, there is little doubt that the residents are forced to forego the peaceful enjoyment of their homes because of the operation of Petitioner's club. The only issue is whether Petitioner's location is suitable for the renewal of the beer and wine permit and minibottle license. Character, residency, and other statutory licensing requirements are not in dispute and therefore will not be addressed.

In order to promote the favorable consideration of his application, Petitioner voluntarily stipulated to placing the following restrictions on his permit and license:

1. Petitioner agrees to turn off speakers producing bass tones and to play his music without amplification.

2. Petitioner further agrees not to allow rap bands at the club and to prohibit remote radio stations from utilizing speakers in its parking lot.

3. Petitioner also agrees to restrict the days the club is open to Friday for "teen night" and Saturday.

4. Petitioner agrees that bands will not be allowed to perform at the club more frequently than once every three months. Further, when a band will be engaged, Petitioner agrees to notify Mr. Lord in writing at least one week before the band's performance and to ensure that the band minimizes its bass tones.

5. Finally, Petitioner agrees to use traffic cones and other reasonable means to discourage non-patrons from cruising the club's parking lot after hours.

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

1. S.C. Code Ann. section 61-2-260 (Supp. 1997) authorizes the South Carolina Administrative Law Judge Division to hear this case.
2. S.C. Code Ann. section 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.
3. S.C. Code Ann. section 61-6-1820 (Supp. 1997) establishes the criteria for the issuance of a minibottle license. Among the criteria is whether the organization has a reputation for peace and good order in the community.
4. 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).
5. 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).

1. 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).
2. 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).
3. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location" Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
4. "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).
5. As the trier of fact, the issuance or denial of a permit rests within the sound discretion of this tribunal. Inherent in the power to issue a permit is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972).
6. The Greenville County Sheriff's Department responded to several dozen calls resulting from noise complaints by nearby residents. Further, credible testimony clearly indicates that the operation of the Petitioner's club "tends to create a public nuisance" for the surrounding residents. See S.C. Code Ann. § 61-4-580(5) (Supp. 1997).
7. Given the record of frequent noise disturbances at this location and the adverse impact the operation of this establishment has had on the neighborhood, granting the renewal of Petitioner's permit and license must only be ordered if the inimical effect on nearby residents can be eliminated or severely minimized.
8. 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permits and permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

This tribunal is well aware that Petitioner has expended large sums of money in this venture and that the club is located in a commercial area. Nonetheless, these facts alone do not entitle him to continued licensure. An alcohol permit or license is neither a contract nor a property right. It is a "mere permit, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do; and to be enjoyed so long as the restrictions and conditions governing their continuances are complied with." Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

Moreover, the members of this community are entitled to be free from breaches of the peace caused by operation of the club. "The right of a person to use his own property does not entitle him to violate the peace and comfort of others in the vicinity." 3 S.C. Juris Breach of Peace § 7 (1991). Additionally, section 61-4-580(5) (Supp. 1997) prohibits the Petitioner, as a holder of a beer and wine permit, from permitting acts on the licensed premises which tend to create a public nuisance or which constitute a crime under the laws of the State. However, this tribunal believes that with a more genuine effort by Petitioner and with adherence to the voluntary stipulations he entered, a harmonious coexistence of Petitioner's club and nearby residents can be achieved.

ORDER

Based upon the Findings of Fact, Discussion, and Conclusions of Law,

IT IS HEREBY ORDERED that the application for the renewal of Petitioner's on premises beer and wine permit and minibottle license is granted, with restrictions.

IT IS FURTHER ORDERED that the Department shall incorporate the stipulations contained herein as restrictions upon Petitioner's permit and license.

IT IS FURTHER NOTED that a violation of any of the restrictions previously set forth or the continued disturbance of the nearby residents may be considered a violation and result in a fine, suspension, or revocation of the Petitioner's permit and license.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 292211-1667

June 8, 1998

Columbia, South Carolina