ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C.
Code Ann. §61-2-90 (Supp. 2002) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2002)
for a contested case hearing. The Petitioner, Gents, LLC, is a “barberspa,” located at 32 Vendue
Range, Suite 100 in Charleston. John David Madison is the owner of Gents, LLC. He seeks an on-premise beer and wine permit for the establishment. The Department of Revenue (Department) filed
a Motion to be Excused setting forth that but for the protests received, this permit would have been
issued. This motion, however, was denied. A hearing on the merits of this case was held on
November 18, 2003, at the offices of the Division in Columbia, South Carolina. Notice of the time,
date, place, and subject matter of the hearing was provided to all parties at least thirty (30) days prior
to the hearing date. The parties were present as indicated above.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in this
matter and closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit for the establishment
known as Gents, LLC, located at 32 Vendue Range, Suite 100, Charleston, South Carolina.
2.Notice of the application was lawfully posted for fifteen days at the location, and
notice of the application also ran in a newspaper of general circulation in the area. The concerns of
the Protestants listed above were timely received by the Department.
3. Gents, LLC is a valid limited liability company registered with the South Carolina
Secretary of State’s office on June 9, 2003. John David Madison, the owner of Gents, LLC, is a legal
resident of South Carolina, has no criminal record and is of sufficient moral character to
receive a beer and wine permit.
4. The location has not been permitted previously for the on-premises sale of beer
and wine. Petitioner runs a men’s “barberspa” which he defines as a place a gentleman could have
a beer or glass of wine while waiting for a hair appointment, an old-fashioned shave, manicure or
massage. The establishment would be open 9 AM to 8 PM Monday through Saturday and from 12
noon to 5 PM on Sunday. The Petitioner has agreed to certain stipulations on his license, including:
A. limiting the hours of operation; B. No exterior signs on the building advertising alcohol, and
C. Limiting the activities of his patrons, such as no smoking, no drinking outside the establishment,
and no loitering.
5.There are several licensed locations in the immediate area surrounding the proposed
location, including several restaurants and free-standing bars.
6. The Protestants all live or own property near the proposed location. Mr. Hilburn is
the president of the homeowners’ association of the condominium complex where Gents, LLC is
located; Ms. Pond and Ms. Smith are residents of the Vendue Range condominiums. Mr. O’Neil is
president of the French Quarter neighborhood association, which is the area of Charleston where the
condominiums are located. All of the Protestants are concerned about the safety of the residents of
32 Vendue Range, and other neighbors, in light of an additional location in the area serving alcohol.
The Protestants presented testimony regarding a patron of Gents smoking in the atrium and a police
report of an intoxicated patron in the common areas of the condominium. Their primary concerns
are the safety of the residents and their quality of life in their homes. They testified that, due to the
design of the building at 32 Vendue Range, anyone in the common atrium can be easily heard by the
other residents because of the way that sound travels up from the central atrium. They worry that a
boisterous patron of the “barberspa” will disturb the residents from this atrium. Although the
Protestants were very steadfast in their opposition to the proposed location, and they presented
specific reasons why this particular location should not be licensed, I find that the restrictions on the
licenses which the applicant has agreed to self-impose address most of the Protestants’ concerns.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Judge Division has jurisdiction in this
matter pursuant to S.C. Code Ann. §61-2-260 (Supp. 2002).
2. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).
3. The applicant has complied with all the provisions of S.C. Code Ann. §61-4-520
regarding application conditions. The only remaining issue is the suitability of the location pursuant
to S.C. Code Ann. § 61-4-520(6) and (7).
4.Licenses and permits issued by the State for the sale of beer, wine, and liquor are
not rights or property, but are rather privileges granted in the exercise of the police power of the
State to be used and enjoyed only so long as the restrictions and conditions governing them are
complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for
cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the
license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
5.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).
6.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 beer and wine permit using broad
but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705
(Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s responsibility to
judge the demeanor and credibility of witnesses and determine the relevance and weight of any
testimony and evidence offered.
7.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence adverse to the location may
be considered. The proximity of a location to a church, school or residences is a proper ground by
itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C.
ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there
have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
8.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a license 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, 261 S.C. 168, 198 S.E.2d 801 (1973).
9.Much of the Protestants’ arguments against the granting of the license sought herein
is that they do not want this type of business, i.e., a business that serves alcohol, in their condominium
complex, along with the possibility of intoxicated patrons in the common areas. However, an
aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of an
application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981). In addition, the
zoning restrictions in place by the City of Charleston, and the Master Deed of Thirty Two Vendue
Range Horizontal Property Regime, submitted as Protestants’ Exhibit 3, allow this type of
commercial business at this location. Moreover, this location is surrounded by upscale restuarants,
hotels, and bars which are licensed to serve alcohol.
10.The Petitioner stated that he would be willing to have a key controlled elevator
system installed on the condominium elevators at his expense. This system would prevent access to
the elevators without the proper key or code. Although this stipulation would address some of the
concerns of the Protestants, I find that I do not have the authority to issue that ruling. The
Homeowners’ Association, as the owner of the common areas of the building, was a Protestant, not
a party to this action. Thus, I do not have the authority to direct them to have this system installed.
In addition, the Protestants who are residents of the building indicated at the hearing that they did not
want access to their elevator limited for safety and convenience concerns.
11.The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer and
wine, did not object to the granting of a permit in this case. I find that this location is suitable for the
on-premises sale of beer and wine.
12. I find that this location shall be permitted with the following restrictions on the
permit as the applicant agreed at the hearing:
a.) That beer and/or wine shall be consumed only inside the location of Gents, LLC;
b.) There shall be no exterior signs advertising the availability of beer and/or wine placed in
the windows or on the building;
c.) The “barberspa” shall be open 9 AM to 8 PM Monday through Saturday and from 12
noon to 5 PM on Sunday.
d.) There shall be no smoking nor loitering in or around Gents, LLC or the common areas
of 32 Vendue Range, including the front stoop.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on-premises beer and wine permit is
GRANTED upon payment of any required fees and costs by the Petitioner to the Department.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premises beer
and wine permit to the Petitioner with the following Restrictions:
1.) That beer and/or wine shall be consumed only inside the location of Gents, LLC;
2.) There shall be no exterior signs advertising the availability of beer and/or wine placed in
the windows or on the building;
3.) The “barberspa” shall be open 9 AM to 8 PM Monday through Saturday and from 12
noon to 5 PM on Sunday.
4.) There shall be no smoking nor loitering in or around Gents, LLC or the common areas
of 32 Vendue Range, including the front stoop.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
December 2, 2003
Columbia, South Carolina |
