ORDERS:
ORDER
The above-captioned cases are before this tribunal pursuant to S.C. Code Ann. § 61-2-260
(Supp. 1997) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997) for a hearing on
Petitioner's applications for an on-premises beer and wine permit and sale and consumption
license ("minibottle") for each of two adjoining private clubs. After notice to the parties and
Protestants, a consolidated contested case hearing was held at the Administrative Law Judge
Division on June 23, 1998.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of these cases, 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 these cases, Brian C. Mitchell seeks a beer and wine permit and minibottle license for
each of the nonprofit organizations, Shaums Casablanca, Inc., d/b/a Astro I and Astro II, each a
private club. The clubs were duly authorized and certified under the laws of South Carolina by
the Secretary of State on August 9, 1990. Each club's members adopted by-laws which limit
membership, and neither club is open to the general public.
Petitioner intends to operate the clubs on Thursday and Friday from 5:00 p.m. to 5:00
a.m. and Saturday from 5:00 p.m. to 2:00 a.m. Each club's purpose, as specified in each
certificate of incorporation, is to provide members with a controlled and pleasant opportunity,
atmosphere, and location to socialize and engage in recreation with other members.
The clubs' proposed locations are adjoining buildings situated off of a major thoroughfare
with several other businesses at 738-A and 738-B South Pleasantburg Drive, a highly commercial
area within the city limits of Greenville, South Carolina. Two of the businesses located near the
clubs hold beer and wine permits and minibottle licenses. Petitioner leases the buildings from
Joe R. Armstrong.
In compliance with statutory requirements, no school, church, or playground is located
within 300 feet of the clubs. Moreover, Eastlan Baptist Church is located approximately 1,200
feet from the proposed locations and Greenville Technical College is over 400 feet away.
Pursuant to statutory character requirements, the State Law Enforcement Division
("SLED") completed a criminal background investigation of Petitioner. The SLED report
revealed no criminal violations, and the record before this tribunal does not reveal that Petitioner
has engaged in conduct that implies the absence of good moral character.
As required by statute, Petitioner is an officer of each club, is at least twenty-one years of
age, is a United States citizen, and has maintained his principal residence in the State of South
Carolina for at least thirty days before applying for the permits and licenses. Further, notice of
the applications was posted at the proposed locations for fifteen days and appeared in the
Greenville News, a newspaper of general circulation in the area of the locations, once a week for
three consecutive weeks. Finally, Petitioner has never had an alcoholic beverage permit or
license revoked.
Protestant Jack Briggs ("Briggs") objects to the issuance of the permits and licenses on
four grounds. First, he believes that the establishments are "out of place" in the community,
especially given the size of the membership of each club. Secondly, Briggs projects that the
establishments will pose a safety hazard given the large volume of traffic on Pleasantburg Drive
coupled with the existence of only two entrances and exits in the parking lot of the proposed
locations. Briggs also argues that the existence of two clubs representing "different lifestyles"(1)
within such close proximity of each other would create problems. Finally, Briggs maintains that
granting the permits and licenses would be illegal because of the proximity of the proposed
locations to Greenville Technical College.
Sgt. George Gambrell appeared as a protestant on behalf of the citizens of Greenville. He
was not aware of any specific law enforcement problems the operation of Astro I and Astro II
would present, as the operation of these adjacent clubs is a novel situation for the city. However,
Sgt. Gambrell raised concerns about "two different types" of clubs of their size operating in such
close proximity to each other. Further, he cited the proximity of the proposed locations to
Greenville Technical College as a concern.
The Department did not oppose the issuance of the permits and licenses to Petitioner and,
but for the protests, would have issued the permits and licenses.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division has jurisdiction over this
subject matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and §§ 1-23-310 et seq.
(1986 & Supp. 1997).
2. 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.
3. S.C. Code Ann. § 61-6-1820 (Supp. 1997) establishes the criteria for the issuance
of a minibottle license.
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).
6. 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).
7. 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).
8. "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." See Moore v. South Carolina ABC Comm'n, 308 S.C.
160, 417 S.E.2d 555 (1992); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d
653 (1991).
9. Protestants allege that the proposed locations are unsuitable because of their
proximity to Greenville Technical College. S.C. Code Ann. § 61-6-120 (Supp. 1997) dictates
that a retail liquor store located within a municipality must be a minimum of three hundred feet
from any church, school, or playground. 23 S.C. Code Ann. Regs. 7-11 (1976) provides the
method for measuring the distances specified in Section 61-6-120. S.C. Code Ann. § 61-6-120
(Supp. 1997) does not conflict with 23 S.C. Code Regs. 7-11. See 1990 Op. S.C. Att'y Gen. No.
90-40 at 127. No church, school or playground is within the proscribed proximity to render the
locations unsuitable.
10. For purposes of a liquor license, S.C. Code Ann. § 61-6-120(A)(2) (Supp. 1997)
defines "school" as an "establishment, other than a private dwelling [sic] where the usual
processes of education are usually conducted." This definition of "school" does not expressly
include or exclude colleges or universities. However, in 1976, the South Carolina Attorney
General opined that the term "school" in § 4-33.1(2) of the 1962 Code of Laws of South
Carolina [which is virtually identical to S.C. Code Ann. § 61-6-120(A)(2) (Supp. 1997)] does not
include a college or university. 1975-76 Op. S.C. Att'y Gen. No. 4494 at 351.
11. In accordance with the longstanding policy of the Department, the term "school"
has been interpreted not to include a college or university. The construction of a statute by the
agency charged within its administration will be accorded the most respectful consideration and
will not be overruled absent compelling reasons. Captain's Quarters v. S.C. Coastal Council, 306
S.C. 488, 413 S.E.2d 13 (1992); Shasta Beverages v. South Carolina Tax Comm'n, 280 S.C. 48,
310 S.E.2d 655 (1983); Faile v. South Carolina Employment Security Comm'n, 267 S.C. 536,
230 S.E.2d 219 (1976). Despite their proximity to Greenville Technical College, other
businesses in the area currently hold alcoholic beverage licenses and permits. This fact is
consistent with the Department's interpretation of the term "school" in S.C. Code Ann. § 61-6-120(A)(2) (Supp. 1997).
12. There is no South Carolina case law determining whether the term "school"
includes colleges or universities under the Alcoholic Beverage Control Act. In the few decisions
directly on point from other jurisdictions, courts have not used a consistent method to determine
if the term "school" includes colleges or universities. Courts have used legislative intent,
definitions within the alcohol and beverage statutes, and the function of the property close to the
retail liquor establishment to determine if the term "school" includes colleges or universities. See
Xavier University v. Thigpen, 151 So.2d 550 (La. App. 1963); Regents of University of New
Mexico v. Hughes, 838 P.2d 458 (N.M. 1992); Granger v. Lorenzen, 28 S.D. 295, 133 N.W. 259
(1911).
13. Greenville Technical College is not a "school" within the context of S.C. Code
Ann. § 61-6-120 (Supp. 1997). Therefore, the proximity of the proposed locations to Greenville
Technical College is of no legal significance in the present cases. Nonetheless, Greenville
Technical College is not within 300 feet of the proposed locations by pedestrian or vehicular
travel as proscribed by S.C. Code Ann. § 61-6-120 (Supp. 1997).
14. The trier of fact must weigh and pass upon the credibility of evidence presented.
See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d
586 (1992). The trial judge who observes a witness is in the best position to judge the witness's
demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481,
299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker,
285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44
(Ct. App. 1984).
15. The denial of a license or permit to an applicant on the grounds of unsuitability of
location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not supported by
facts. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981); Taylor v. Lewis, 261
S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
16. In requesting this tribunal to deny Petitioner's permits and licenses, Protestants
are in essence asking this tribunal to effectuate zoning. The ultimate purpose of zoning is to
confine certain classes of buildings and uses to certain localities. 101A C.J.S. Zoning and Land
Planning § 101 at 366 (1979). Such authority is vested solely in Protestant's local government.
Furthermore, the nature of the establishments in question is consistent with the nature of this
highly commercial area and with the two existing businesses which currently hold beer and wine
permits and minibottle licenses.
17. The fact that members of the community protest the issuance of the permits and
licenses is not a sufficient reason by itself to deny the permits and licenses. See 45 Am. Jur. 2d
Intoxicating Liquors § 162 (Supp. 1994).
18. The objections raised by Protestants are mainly rooted in their concerns that the
operation of two adjacent clubs of "differing lifestyles" may present problems. This tribunal
acknowledges Protestants' opposition to the issuance of the permits and licenses in question and
also acknowledges their right to hold such sentiments. However, mere speculation is an
insufficient basis for finding a location unsuitable. Further, Protestants' concerns do not fall
within the statutory grounds set forth for denial of a permit or license.
19. Standards for judging the suitability of a proposed location for the sale of beer,
wine, or liquor are not determined by a local community's religious convictions or moral litmus
test. Rather, suitability standards are established by the law. Criteria must be uniform, objective,
constant, and consistent throughout the State. The sale of beer, wine, and liquor is a lawful
enterprise in South Carolina, as regulated by the State.
20. In making a decision in this matter, this tribunal is constrained by the record
before it and the applicable statutory and case law. Accordingly, the record in this case reveals
that both proposed locations are suitable and proper for the issuance of a beer and wine permit
and minibottle license. Further, Petitioner satisfies all of the statutory grounds enacted by the
South Carolina General Assembly for holding a beer and wine permit and minibottle license at
the respective locations.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Department of Revenue issue an on-premises beer
and wine permit and minibottle license to Brian C. Mitchell, Shaums Casablanca, Inc., d/b/a
Astro I and Astro II, for each of the locations at 738-A and 738-B South Pleasantburg Drive,
Greenville County, South Carolina upon the payment of the required fees and costs by Petitioner.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
July 22, 1998
Columbia, South Carolina
1. Although vague references to the "different lifestyles" of the members of at least one of the proposed
locations were made by Protestants, no evidence or testimony was offered to explain the specific meaning,
relevance, or significance of these references. |
