SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998), S.C. Code Ann. § 61-6-1820 (Supp. 1998), and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 1998), for a contested case hearing. The Petitioner, Ice Cream's Comedy Cafe, Inc., seeks an on-premises beer and wine permit and a business sale and consumption minibottle license for its establishment at 7910 Dorchester Road, North Charleston, South Carolina, in Charleston County. After the Protestant, Glenn A. Gillespie, filed a written protest, and upon the Petitioner's request, this matter was transmitted by the South Carolina Department of Revenue (DOR) to the Administrative Law Judge Division (ALJD) for a hearing.

After timely notice to the parties and the Protestant, a hearing was held on August 5, 1999, at the ALJD in Columbia, South Carolina. The Protestant did not move to intervene as a party.

The issues considered at the hearing were: (1) the suitability of the proposed business location; and (2) the nature of the proposed business activity. Upon review of the relevant and probative evidence and applicable law, the Petitioner's application for an on-premise beer and wine permit and a business sale and consumption minibottle license is granted subject to the conditions set forth below.

DISCUSSION AS TO

THE PROTESTANT

The Protestant, Mr. Glenn A. Gillespie, challenges the suitability of the proposed location because he believes that its proximity to residential dwellings will negatively impact the quality of life for nearby residents.

Mr. Gillespie asserted that the proposed location is too close to a residential area and would be detrimental to the many children who live in the affected area. Further, Mr. Gillespie attributes several instances of damaged and stolen property in his neighborhood, as well as litter, to the existence of several "bars" near the entrance to his subdivision, Summerfield. Mr. Gillespie complains primarily of finding beer bottles and beer cans strewn about his neighborhood. He could not state, however, that any of these problems were caused by the patrons of any of the establishments located near his house.

Ms. Consuelo F. Williams, president of the Tri-County American Family Association, asserted that it is generally known that crime increases, property values decrease, and urban blight sets in where a particular area is burdened with licensed establishments. She also testified that the residents must contend with drunken driving and litter.

Ms. Charlotte Gillespie, the protestant's wife and city councilwoman, testified that she was unaware of negotiations between the Petitioner and the City of North Charleston regarding issuance of a business license.

The Court has given great weight to the concerns of Mr. Gillespie and his witnesses. However, with the conditions set forth in this Order, it is the opinion of the Court that the concerns expressed can be, and should be, alleviated.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Charles H. Washington of Ice Cream's Comedy Cafe, Inc. leases the proposed location from Bobby Strickland. Mr. Gillespie does not challenge the Petitioner's suitability to hold the requested permit and license.

2. Prior to the hearing, the DOR moved to be excused from appearance at and participation in the hearing. In that motion, the DOR noted it does not oppose the Petitioner's application and would have granted the permit and the license but for the protest. The DOR's motion to be excused was granted.

3. The proposed location is in the North Charleston city limits. Although the property immediately fronting Dorchester Road is used primarily for commercial purposes, much of the surrounding area is residential.

4. The entrance to Summerfield is approximately 1,500 feet from the proposed location. The area between the primarily commercial Dorchester Road frontage and Summerfield is a vacant, partially wooded lot.

5. Although the entrance of the Fireside Apartment Homes is significantly closer to the proposed location than Summerfield, none of those residents appeared to protest the issuance of the permit or the license.

6. The proposed location plans to operate as a restaurant offering buffet-style meals, snacks, beer, wine, and liquor, while comedians perform on stage. The proposed location has a seating capacity of 254 in its dining area. The Petitioner has received the required Class A restaurant license from the South Carolina Department of Health and Environmental Control for his establishment.

7. The DOR has previously issued an on-premises beer and wine permit and/or a business sale and consumption minibottle license for this location, but not to this Petitioner.

8. There is no church, school, or public playground within 300 feet of the proposed location. The nearest church, the Unity Church of Charleston, is located 743 feet from the proposed location.

9. The proposed location is currently zoned B-2, a classification somewhat more restrictive than the B-3 class which is required for clubs and taverns. Before the city would issue the Petitioner a business license, the Petitioner had to assure the city that the proposed business would fit within the B-2 classification; otherwise, the location would need to be re-zoned. Pursuant to those negotiations and resulting conditions, the city determined the proposed location fit within the B-2 zoning classification. As noted by the city attorney, the conditions are as follows:

a. There will be no live music entertainment or music for the purpose of dancing during the operation of the business. This does not mean that you cannot have "mood music" as background to normal dining during business hours.

b. There will be no dance floor used for dancing in the facility.

c. Mr. Washington will serve a buffet available Monday through

Sunday from 11:00 a.m. until 9:00 p.m.

d. Weekday hours would be from 11:00 a.m. until 9:00 p.m. Monday, Tuesday, and Wednesday and 11:00 a.m. until 1:00 a.m. the following day on Thursday, Friday, and Saturday. Sunday hours would be from 11:00 until midnight.

e. There would be no video poker machines at the facility.

f. The current bar will be removed from the facility, and replaced with a suitable service bar.

CONCLUSIONS OF LAW

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 subject matter jurisdiction to hear and to determine this contested case pursuant to S.C. Code Ann. § 1-23-600 (Supp. 1998) and S.C. Code Ann. § 61-2-260 (Supp. 1998).

2. S.C. Code Ann. § 61-4-520 (Supp. 1998) establishes the criteria for the issuance of a beer and wine permit. S.C. Code Ann. § 61-6-1820 (Supp. 1998) establishes the criteria for the issuance of a business sale and consumption minibottle license.

3. The Protestant challenges the suitability of the location. Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge Division 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); Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4. The determination of the 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).

5. The Protestant's testimony that the well-being of the community would be jeopardized by the issuance of the permit and the license was based upon opinion and lacked specific factual support. Nevertheless, the Court shares Mr. Gillespie's concerns. In light of the Petitioner's agreement to abide by the above mentioned conditions, the Court concludes that the permit and the license should be issued subject to those same conditions.

6. This determination does not prevent the Protestant from challenging a renewal of the requested permit and license.

7. The Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an on-premise beer and wine permit and a business sale and consumption minibottle license. The same is true of the proposed location so long as it retains its B-2 zoning classification.

8. The Petitioner warranted to this court, as Mr. Washington did in order to obtain the required business license, that the proposed location would operate within certain parameters, as set forth above. Operation within those parameters is necessary to maintain the required business license, which is, in turn, required to maintain the requested permit and license. Further, conditioning issuance of the requested permit and license upon the same stipulations may expedite the imposition of a fine, suspension, or revocation if the Petitioner does not adhere to a condition.

ORDER

The DOR shall issue an on-premises beer and wine permit and a business sale and consumption minibottle license to the Petitioner for his establishment at 7910 Dorchester Road, North Charleston, South Carolina, subject to the conditions set forth below:

a. There will be no live music entertainment or music for the

purpose of dancing during the operation of the business.

This does not mean that "mood music" cannot be played

as background to normal dining during business hours.

b. There will be no dance floor used for dancing in the facility.

c. Mr. Washington will serve a buffet available Monday

through Sunday from 11:00 a.m. until 9:00 p.m.

d. Weekday hours will be from 11:00 a.m. until no later than

9:00 p.m. on Monday, Tuesday, and Wednesday; and 11:00 a.m.

until no later than 1:00 a.m. the following day on Thursday,

Friday, and Saturday. Sunday hours will be from 11:00 a.m.

until no later than midnight.

e. There will be no video poker machines at the facility.

f. The current bar will be removed from the facility,

and replaced with a suitable service bar.

Petitioner shall sign a written Agreement with the DOR to strictly adhere to the above conditions. A violation of any of the above conditions shall be considered a violation against the permit and the license and may result in a fine, suspension, or revocation.

AND IT IS SO ORDERED.

______________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

August 13, 1999

Columbia, South Carolina