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, Judy L. Quattlebaum, seeks an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for L. A. Nights. The Respondent made a Motion to be Excused which was granted by my Order dated May 21, 1998. A hearing was held June 29, 1998 at the Administrative Law Judge Division.

The Permit and License requested by the Petitioner are approved with restrictions.

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, Protestant, and South Carolina Department of Revenue.

2. The Petitioner seeks an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for her location at 7303 Firelane Road, Columbia, South Carolina. The area is zoned for commercial use by Richland County. L. A. Nights incorporated as a nonprofit organization under South Carolina law on July 7, 1995.

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 Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit and sale and consumption license. Furthermore, there was no evidence offered to establish that the Petitioner's business did not have a reputation for peace and good order.

5. The proposed location is not unreasonably close to any church, school or playground.

6. The Protestant, a resident of the adjacent neighborhood, contends that the Petitioner's location is not suitable because of numerous problems with the previous businesses at the same location as a result of the proximity of residences and the location of the proposed location on Firelane road. The proposed location is situated on Firelane Road, a frontage road adjacent to Interstate 20, near the Two Notch Road exit, approximately 400 feet from the entrance to a neighborhood. The frontage road leads to the proposed location and thereafter into the nearby neighborhood. The frontage road is narrow with little, if any, shoulder. When the small parking lot at the location becomes full, patrons of the location begin parking on the frontage road. The Protestant contends that the overflow parking at the previous businesses at this location has created a traffic hazard on the frontage road.

The proposed location is in an unincorporated area of northeast Richland County. It has previously been permitted for the on-premise sale of beer and wine and a sale and consumption license on and off during the past 11 years by different individuals. Two of those businesses, "Bogie's" and "Fatties," held beer and wine permits and were operated as bars. Bogie's did not have much business and caused very few problems in the area. Fatties caused many problems including noise, along with intoxicated individuals and traffic through the local neighborhood. The neighborhood was used as a thoroughfare by the patrons exiting the proposed location to reach Parklane Road despite the restriction prohibiting the permitee/licensee from allowing that behavior. Callaros also held a beer and wine permit and a sale and consumption license. Though Callaros was operated as a restaurant, it also caused a traffic hazard when its patrons parked on Firelane Road despite a restriction prohibiting Callaros' patrons from parking there.

7. The Petitioner contends that she intends to operate her business as a "sit down" restaurant and not a bar. Her hours of operation would be to 11:00 p.m. Monday and Tuesday, and to 1:00 a.m. Wednesday, Thursday, and Friday.

8. The most recent permit/license at the location was held by Wilmot P. Sligh, d/b/a Dazzler's, Inc. That permit/license was granted with the following restrictions:

a. Applicant must hire professional security personnel to be present on the business premises and patrol the club parking lot during all hours in which the club is open for business and after business hours until all patrons have left the premises.

b. Loitering in the parking lot is prohibited. Persons sitting in parked vehicles or standing in the parking lot must be ordered to immediately either leave the premises or enter the club.

c. After closing each night of operation, security personnel must supervise the orderly departure of patrons from the parking lot.

d. Possession or consumption of beer, wine, or liquor outside of the club building is prohibited.

e. Applicant shall construct and erect a sign, visible from the exit of the parking lot, to instruct exiting patrons to leave the premises via Firelane Road to Two Notch Road.

f. Applicant shall provide adequate parking for patrons.

g. Applicant shall prohibit patrons from parking on the shoulder of Firelane Road and strictly enforce the prohibition.

h. Applicant shall have club employees pick up litter from the grounds of the club each day/night of operation.

I. Applicant shall not allow excessive noise to emanate from the proposed location. For purposes of this restriction, two (2) or more convictions for violation of the county noise ordinance, Chapter 18, Section 18-3, Richland County Code of Ordinances (as amended), shall be considered prima facie evidence of a violation of this provision.

No evidence was presented as to why the above restrictions are not as applicable now as when this location previously held a permit and license.

9. The proposed location is suitable for an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization if operated solely as a restaurant with the restrictions set forth below.

CONCLUSIONS OF LAW

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 in either 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 furthermore, the business must also have a reputation for peace and good order.

5. S.C. Code Ann. § 61-6-20 (6) (Supp. 1997) establishes that a nonprofit organization is not open to the general public and only the members and guests of the club may consume alcoholic beverages upon the premises.

6. S.C. Code Ann. §61-6-1820 (Supp. 1997) provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, or playgrounds as set forth in S.C. Code Ann. §61-6-120 (Supp. 1997). Section 61-6-120 requires that a location licensed to sell liquor outside of a municipality must be a minimum of three hundred feet (300') from any church, school, or playground.

7. Although "proper location" is not statutorily defined, broad discretion is vested in 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 118 (1981).

8. 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 and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

9. 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).

10. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that a protestant objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

11. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

12. The Petitioner meets the statutory requirements for holding a beer and wine permit and a club sale and consumption license as a nonprofit organization operating solely as a restaurant with the following restrictions.

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

ORDERED that the application for an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization of Judy L. Quattlebaum for L. A. Nights be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to adhere to the above restrictions set forth in finding of fact number 8, "a" through "I".

IT IS FURTHER ORDERED that a violation of any of the above stipulations or restrictions be considered a violation against the permit and license and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue a beer and wine permit and a club sale and consumption license as a nonprofit organization upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.

_______________________________

Ralph King Anderson, III

Administrative Law Judge

August 17, 1998

Columbia, South Carolina