ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
Petitioner John B. Casey filed an application for a license for the sale and consumption of
alcoholic beverages in sealed containers in two ounces or less (hereinafter "mini bottle license") with
the Department of Revenue (DOR or Department). The mini bottle license is sought for use at
Spinners, Inc. A single protest was filed by Robert L. Williams, Chief of Police, Town of Santee,
seeking to prevent the DOR from granting the license. The Respondent made a Motion to be
Excused which was granted by my Order dated March 16, 1999. A hearing was held in this case
before me on April 26, 1999 at the Administrative Law Judge Division in Columbia, South Carolina.
Chief Williams, protestant of record, appeared on his own behalf. The issues considered at
the hearing were the suitability of the proposed business location and the nature of the proposed
activity. Based upon review of the evidence and the applicable factors and for the reasons stated
below, the Petitioner's application for a mini bottle license is hereby granted with the condition that
if Petitioners or their employees are charged and convicted of violating the Town of Santee noise
ordinance at the Spinner's location on two separate occasions within two years from the date of this
Order, the license will be revoked.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits and arguments presented at the hearing
on this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of evidence:
1. Petitioner seeks the grant of a mini bottle license at Spinners, Inc., at 747 Bass Drive,
Santee, South Carolina.
2. The qualifications set forth in S. C. Code Ann. § 61-6-1820 (Supp. 1998) 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.
3. The State Law Enforcement Division ("SLED") completed a criminal background
investigation on Petitioner John Casey. The SLED report did not reveal any criminal violations.
There was no evidence presented that the Petitioner is not of sufficient moral character to receive
a mini bottle license. Furthermore, there was no evidence offered to establish that the Petitioner's
business did not have a reputation for peace and good order.
4. The proposed location is not unreasonably close to any church, school or playground. 5. Petitioner operates an adult nightclub at this location and has held an on-premises
consumption license to sell beer and wine since it opened in May of 1996. The business is also
equipped with a kitchen that is utilized for the cooking, preparation and serving of hot food.
6. The Department of Revenue did not oppose Petitioner's application.
7. The Chief of Police for the Town of Santee, Robert L. Williams filed a protest in
opposition to the application for a mini bottle license. As justification for denial of the mini bottle
application, the protestant contends that there have been three separate criminal arrests of individuals
for conduct that was affiliated or associated with this business location. According to Chief
Williams, in October 1997 a patron was arrested after he had left this business for reckless driving
and disorderly conduct. Additionally, a former employee of the business was arrested on charges
of selling marijuana at a location other than the business. There was also an arrest in January 1999
of two patrons who were engaged in a fight.
However, these three criminal incidents are isolated and not related to the conduct of the
business. For instance, the October 1997 arrest for reckless driving did not involve a charge of
driving under the influence. Furthermore, the drug arrest of a former employee did not occur on the
premises nor did it involve any sells at the Petitioner's business. In fact, Mr. Casey discharged the
employee immediately upon learning of these charges. The last arrest in January 1999 involved two
patrons who were creating a disturbance in the business and the manager called the police.
8. Chief Williams also testified that his department has received over sixty complaints
of excessive noise from an individual who lives behind the business. However, only two of these
complaints resulted in criminal charges being prosecuted. Although the number of complaints raises
a legitimate concern about the character and suitability of this business, these concerns are mitigated
by the fact that only two complaints were actually prosecuted. The Court further believes that the
noise situation will be managed through the issuance of a license conditioned upon there being only
two additional violations of the local noise ordinance for a twenty-four month period following the
date of this order.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Regulation 23 S.C. Code Ann. Reg 7-3 requires a hearing with jurisdiction in the
Administrative Law Judge Division under S.C. Code §§ 61-2-260 (Supp. 1998),1-23-600(b) (Supp.
1998) and 1-23-310 (Supp. 1998).
2. 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). Specifically, the proximity of a location to
residences and churches is a proper consideration. However, the proposed location is not within an
improper proximity to churches or residences so as to require denying a permit or license. See
Moore v. S.C. ABC Comm'n 308 S.C. 160, 417 S.E. 2d 555 (1992).
3. 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).
4. The degree of strain placed upon police to adequately protect a community is a valid
consideration in a permanent or license review. Moore v. S.C. ABC Comm'n, Id. However, the law
enforcement resources in the area of the proposed location are not so unduly taxed as to warrant
denying a permit and license in this case.
5. Permits and licenses issued by this state for the sale of liquor, beer and wine are not
property rights. They are, rather, privileges 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. In considering granting a permit or license, "[t]he department . . . is authorized to establish
conditions or restrictions which the department considers necessary before issuing or renewing a
license or permit." S.C. Code Ann. Section 61-2-80 (Supp. 1998). The Administrative Law Judge,
as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or
conditions on the permit or license. See Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26 S.E. 2d 22
(1943). Furthermore, 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 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.
6. The applicant meets the requirements for the issuance of a mini bottle license
pursuant to S.C. Code Ann. § 61-6-1820.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that John Casey's application for a mini bottle license at Spinners be granted
upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue
agreeing to the following restriction:
If John Casey and/or Spinners's, Inc., its agents, servants or employees are
charged and convicted of violating the Town of Santee's noise ordinance at the
Spinner's location on two separate occasions from the date hereof, the mini bottle
license shall be revoked. The protestant Robert L. Williams, Chief of Police or his
successor is requested to notify the Department of Revenue of all noise ordinance
violation convictions arising from this business within two years from the date of this
Order.
IT IS FURTHER ORDERED that the Department of Revenue issue a mini bottle license
upon the payment of the required fee and cost by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
May 24, 1999
Columbia, South Carolina |
