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, Candy K. Fuller, Jay Jr., Inc., seeks an on-premise beer and wine permit and a restaurant sale and consumption license. The Respondent made a Motion to be Excused which was granted by my Order dated June 25, 1998. A hearing was held September 9th, 1998, at the Administrative Law Judge Division. The Permit and License requested by the Petitioner are approved.

Having observed the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestants, 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.

2. The Petitioner seeks an on-premise beer and wine permit and a restaurant sale and consumption license as a corporation doing business at 2851 Highway 17 South, Garden City, 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 Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit and sale and consumption license. Furthermore, no evidence was presented that challenged the reputation of the Petitioner's business for peace and good order in the community or its principal's moral character.

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

6. The Protestants contend that the Petitioner's location is not suitable because:

a. The entertainment offered by the Petitioner and the patrons the business would attract are not conducive to the family atmosphere of Garden City Beach;

b. The location does not meet the restaurant requirements of the state's alcoholic beverage laws and regulations;

c. The location is too close to a neighborhood; and

d. The location is too close to a church.

7. The proposed location is situated on Highway 17, in a commercial area of Garden City. In fact, the area is zoned for commercial use by Horry County. The location is surrounded on two sides by a L-shaped strip shopping center which also contains other alcoholic beverage licensed establishments. The Finish Line Bar & Grill held an on-premises beer and wine permit and restaurant mini-bottle license for the location when the applicant purchased the business from the former license holder.

The Finish Line Bar & Grill previously operated as a sports bar. The Petitioner is now operating the location as a "gentleman's club" which provides adult entertainment. However, the entertainment being offered by the applicant is lawful in South Carolina. Additionally, the "Painted Duck" which also provides similar "adult" entertainment is located directly behind the Pink Pony. The "Painted Duck" was opened before the Petitioner's business was opened. More importantly, the Painted Duck was previously granted a beer and wine permit and a sale and consumption license without any protest. Furthermore, the Painted Duck is actually closer to the residential community than the Pink Pony.

8. The Petitioner has been operating the business under a temporary 120-day license issued by the Respondent. There have been no incidents or problems at the location while it has been operating with its temporary permit and license.

9. The Pink Pony holds a Grade "A" health permit and seats in excess of the required 40 patrons at tables and chairs. It opens around 11:00 a.m. for lunch each day and closes around 2:00 a.m. the following morning. The establishment has a kitchen that prepares and serves a buffet lunch and a la cart items from the menu for dinner from 11:30 a.m. to 12:00 p.m. Additionally, the Respondent's file indicates that the location met the restaurant inspection requirements at the time of SLED's investigation of this application.

10. The location is situated in a commercial area where beer, wine and alcohol have been historically sold. Additionally, a business offering similar "adult" entertainment has been licensed and permitted in the same area. There is no evidence of any law enforcement problems or any violations of the Petitioner's temporary license and permit. Therefore, the proposed location is suitable for an on-premise beer and wine permit and a restaurant sale and consumption license.

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. 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, not only must the principals and applicant be of good moral character, but also, the business must have a reputation for peace and good order.

5. S.C. Code Ann. § 61-6-20(2) (Supp. 1997) states "'Bona fide engaged primarily and substantially in the preparation and serving of meals' means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than 40 persons simultaneously at tables for the service of meals." Furthermore, 23 S.C. Code Ann. Regs. 7-19(A) (1976) states that in order to meet the requirements of S.C. Code Ann. § 61-6-20(2) (Supp. 1997) the location must:

1. Be equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals; and

2. Have readily available to its guests and patrons either "menus" with the listings of the various meals offered for service or a listing of available meals and foods, posted in a conspicuous place readily discernible by the guest or patrons; and

3. Prepare for service to customers hot meals at least once each day the business establishment chooses to be open; and

4. If such establishment advertises, a substantial portion of its advertising must be devoted to its food services.

"Primarily" is defined by the Regulation as follows:

the serving of meals by a business establishment constitutes a regular and substantial source of business to the licensed establishment and that meals shall be served upon the demand of guests and patrons during the normal "mealtimes" which occur when the licensed business establishment is open to the public and that an adequate supply of food is present on the licensed premises to meet such demand.

23 S.C. Code Ann. Regs. 7-19(B)(3) (1976).

6. The attorney for the Protestants advised the Court that there was a pending change in the local zoning ordinance which could impact the location's entertainment in the future. Whether or not a location is in compliance with local zoning ordinances, now or in the future, is a matter left to the local authorities. The ultimate purpose of zoning is to confine certain classes of buildings and uses to certain localities and thereby protect the value of the zoned property. 101A C.J.S. Zoning and Land Planning § 101 (1979). Such authority is vested solely in the local government.

7. 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 (300') feet from any church, school, or playground.

8. 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).

9. 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).

10. 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).

11. 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).

12. In considering the suitability of a location, it is appropriate 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 fact or merely based on opinions, generalities and conclusions. 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). The evidence did not establish that the location is any less suitable for the sale of beer, wine and mini-bottles now than during the prior years of being licensed.

13. The Petitioner meets the statutory requirements for holding a beer and wine permit and a restaurant sale and consumption license.

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 restaurant sale and consumption license of Candy K. Fuller, Jay Jr., Inc. be granted.

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

AND IT IS SO ORDERED.

_______________________________

Ralph King Anderson, III

Administrative Law Judge

October 2, 1998

Columbia, South Carolina