SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1997) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. The Petitioner, Terrance L. Fisher, seeks an on-premise beer and wine permit and sale and consumption license for Club Dynasty Restaurant and Bar (Club Dynasty). Protestant City of North Charleston made a Motion to Intervene which was granted February 19, 1998. A hearing was held April 29, 1998 in North Charleston, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestant, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue and Taxation.

2. The Petitioner seeks an on-premise beer and wine permit and a sale and consumption (minibottle) license for Club Dynasty at 5341 Dorchester Road, North Charleston, South Carolina.

3. The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1997) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Respondents object to the issuance of a permit and license to the Petitioner for the following reasons:

a) The noise that is generated by this Club is excessive;

b) There is not sufficient parking for the patrons of the proposed location;

c) The proposed location will create traffic problems; and

d) The proposed location will produce a "strain" upon law enforcement.

5. The Petitioner intends to open a bar/restaurant at Club Dynasty specializing in Caribbean food and Reggae and Calypso music. The restaurant would be open from 10:00 a.m. to 9:00 p.m., and the bar area would be open from 9:00 p.m. to approximately 2:00 a.m. The restaurant has been open a couple of months. The Petitioner testified that he intends to have a strict dress code and "cater" to the 30 years of age and over crowd.

6. The Respondents contend that this location is unsuitable because the noise generated by this Club is excessive. The proposed location is in a predominately commercial area of the City of North Charleston. However, Evanston Estates, a large residential community in North Charleston, is located directly behind the Petitioner's Club. In fact, only a small driveway behind the Petitioner's location separates his Club from homes located in the community.

The Petitioner testified that the bar area of his location has been used only on a few occasions for private parties. Nevertheless, that occasional use reveals not only instances of loud music emanating from the Petitioner's location, but also a legacy of Petitioner's failure to rectify the problem. In fact, the police department has responded to five complaints concerning noise at the proposed location from September 16, 1997 to January 6, 1998. The Petitioner played music at his location that was heard in a closed police car at a traffic light approximately 1,000 feet from the location. Moreover, the music has rattled the windows of local residents and on one occasion shook the car windows of a local councilman who was investigating the residents' complaints concerning the proposed location.

Though the Petitioner presented credible testimony that the offensive nature of the "bass" emanating from the location could be somewhat allayed by proper sound engineering, ⁽¹⁾ the Petitioner's failure during this application process to reduce the sound emanating from the proposed location indicates that he will continue to play music excessively loud in the future. Furthermore, the Petitioner testified that he intends to have "security" at the location to prevent noise from occurring in the parking area of his location. However, his plans of having "security" are vague and tentative. These nebulous plans certainly do not satisfy me that the Petitioner will prevent further noise from occurring in the parking area of his location.

7. I find that the proposed location is unsuitable for a beer and wine permit and a sale and consumption license because of its proximity to the nearby residences, the burden upon law enforcement and the resulting negative impact that would occur upon the local community.

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1997) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1997) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance of an on-premise beer and wine permit.

4. In addition to the requirements set forth above, a license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 1997) are met. That section requires that a mini-bottle license be granted only to a bonafide business engaged either in the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, the principals and applicant must not only be of good moral character, but the business must also have a reputation for peace and good order.

5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer, wine or alcohol using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. Although "proper location" is not statutorily defined, the Administrative Law Judge Division is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court 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). Furthermore, "[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).

7. "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).

8. A beer and wine permit is neither a contract nor a property right. It is, rather, a privilege granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

9. "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).

10. The proposed location abuts a residential community. The North Charleston Police Department has responded to several calls involving noise problems at this location as recently as January 6, 1998. S.C. Code Ann. § 61-4-580 (Supp. 1997) provides that:

No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder's permit:

* * *

(5) permit any act, the commission of which tends to create a public nuisance . . . .

The evidence clearly shows that the operation of the Petitioner's business "tends to create a public nuisance" for the surrounding residents. See S.C. Code Ann. § 61-4-580(5) (Supp. 1997). Given the record of frequent disturbances at this location, and the adverse impact the operation of this establishment has had on the adjoining neighborhood, granting this license and permit would be harmful to the general welfare of the community.

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

ORDERED that the on-premise beer and wine permit and sale and consumption license application of Terrance L. Fisher for Club Dynasty be denied.

AND IT IS SO ORDERED.

_________________________

Ralph King Anderson, III

Administrative Law Judge

June 11, 1998

Columbia, South Carolina

1. The Petitioner also presented evidence using Goldline Spectrum Analyzer that the average range of the music was within acceptable sound limits. However, the evidence concerning the sound emanating from Petitioner's location in the past makes those test results questionable.