ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. § 1-23-310 et seq. (2005) for a contested case hearing. Petitioner Marlin Cafes,
Inc., seeks an on-premises beer and wine permit and a restaurant
liquor-by-the-drink license for its River City Cafe restaurant located in the
Sands Ocean Club Resort at 9550 Shore Drive, Suite A, in Myrtle Beach, South
Carolina. Respondent South Carolina Department of Revenue (Department) denied
Petitioner’s application for the permit and license because of a protest filed
by the Sands Ocean Club Homeowners’ Association (Homeowners’ Association)
regarding the suitability of Petitioner’s restaurant for the requested permit
and license and because of the Department’s own concerns regarding the precise
boundaries of the premises to be licensed. On August 3, 2006, the Homeowners’
Association moved for leave to intervene in this matter in opposition to
Petitioner’s application, and a hearing on the Association’s motion to
intervene was conducted before the Court on August 24, 2006. At the close of
that hearing, the Court granted the Association leave to intervene in this
matter, as reflected in the amended caption above. After timely notice to the
parties, the contested case hearing was held on September 13, 2006, at the
South Carolina Administrative Law Court in Columbia, South Carolina. Based
upon the evidence presented regarding the suitability of the location and upon
the applicable law, I find that Petitioner’s application for an on-premises
beer and wine permit and a restaurant license to sell liquor by the drink
should be granted.
FINDINGS
OF FACT
Having
carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of
the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On
or about April 6, 2006, John S. Divine, IV, submitted an application on behalf
of Petitioner Marlin Cafes, Inc., to the Department for an on-premises beer and
wine permit and a license to sell liquor by the drink for its River City Cafe
restaurant located in the Sands Ocean Club Resort at 9550 Shore Drive, Suite A,
in Myrtle Beach, South Carolina. This application and the Department’s file on
the application are hereby incorporated into the record by reference.
2. Notice
of Petitioner’s application was published once a week for three consecutive
weeks in The Myrtle Beach Herald, a newspaper published and circulated
in Myrtle Beach, South Carolina, and proper notice of the application was
posted at the proposed location for fifteen days.
3. Petitioner
Marlin Cafes, Inc., is a South Carolina statutory close corporation,
incorporated in 1990 and currently in good standing with the South Carolina
Secretary of State. John S. Divine, IV, is the president and sole owner of
Marlin Cafes, Inc., which, in turn, owns and operates a number of restaurants
in the Myrtle Beach area, including six River City Cafes. There is no evidence
in the record suggesting that Marlin Cafes, Inc., does not have a reputation
for peace and good order in the surrounding community.
4. Mr.
Divine is over twenty-one years of age and does not have any delinquent state
taxes. Further, the South Carolina Law Enforcement Division (SLED) conducted a
criminal background investigation of Mr. Divine that did not reveal any
criminal arrests or convictions, and the record does not indicate that Mr.
Divine has engaged in any acts or conduct implying the absence of good moral
character.
5. The
premises to be licensed consist of a restaurant facility located within the
Sands Ocean Club Resort, an oceanfront condominium development in Myrtle Beach,
South Carolina. Petitioner leases the
restaurant facility from the resort, under a twenty-year lease signed in 2001.
The premises to be licensed are fully equipped for restaurant operations, have
seating for over eighty persons for the service of meals, and have received a
Grade A restaurant license from the South Carolina Department of Health and
Environmental Control. There are no churches, schools, or playgrounds within
five hundred feet of the location. There are currently three other
establishments licensed to sell alcoholic beverages on the grounds of the Sands
Ocean Club Resort, namely, Sandals Lounge, Windows Restaurant, and Ocean
Annie’s Beach Bar.
6. Petitioner
has operated its River City Cafe at the location since 2001. The restaurant
serves casual American cuisine, such as sandwiches, hamburgers, and the like,
and derives over eighty percent of its revenue from food sales. Initially, the
restaurant sold beer, wine, and liquor under an “umbrella” permit and license
held by the resort for all of the dining facilities on the property. However,
after a change of the resort’s ownership in 2005, the location was no longer
covered under the umbrella permit and license, and the restaurant has not sold
alcoholic beverages since that time.
7. At
the hearing, a representative of the Sands Ocean Club Homeowners’ Association
testified regarding the Association’s opposition to Petitioner’s permit and
license application. Specifically, he explained that the Association had
concerns with the cleanliness of the restaurant’s operations, as evidenced by a
grease spill in the hallway behind the restaurant, a roach infestation at the
location, and a torn awning outside the establishment, and that the Association
was concerned with not being able to control alcohol sales on its property if
Petitioner’s restaurant were to be licensed for the sale of alcoholic
beverages.
CONCLUSIONS
OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a
matter of law:
1. Jurisdiction over this case is vested with the South Carolina
Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2005),
S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§ 1-23-310 et
seq. (2005).
2. “[T]he issuance or granting of a license to sell beer or
alcoholic beverages rests in the sound discretion of the body or official to
whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic
Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App.
1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n,
269 S.C. 13, 235 S.E.2d 806 (1977).
3. S.C. Code Ann. §§ 61-4-500 through 61-4-620 (Supp. 2005)
govern applications for retail beer and wine permits and establish the criteria
for determining eligibility for those permits. The basic requirements for
licenses to sell liquor by the drink as a restaurant are found in S.C. Code
Ann. §§ 61-6-1610 and 61-6-1820 (Supp. 2005) as well as in 23 S.C. Code Ann.
Regs. 7-401.3 (Supp. 2005). Further, S.C. Code Ann. § 61-2-100 (Supp. 2005)
lays out the general requirements that all applicants for permits and licenses
to sell alcoholic beverages must satisfy.
4. S.C. Code Ann. § 61-4-520 (Supp. 2005) establishes the
criteria for the issuance of a beer and wine permit. Included in the criteria
is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7). S.C. Code Ann. § 61-6-1820 (Supp. 2005) sets
forth the basic criteria for the issuance of a license to sell liquor by the
drink. Although the suitability of the proposed location is not listed in
Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C.
138, 276 S.E.2d 308 (1981).
5. Although “proper location” is not statutorily defined, broad
discretion is vested in the trier of fact to determine the fitness and
suitability of a particular location for the requested permit. See Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
6. The determination of suitability of location is not
necessarily a function solely of geography. Rather, 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. S.C. Alcoholic
Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
7. However, without sufficient evidence of an adverse impact on
the community, a permit application must not be denied if the statutory
criteria are satisfied. The fact that the issuance of a permit or license is
protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. Further, the denial of a license or permit to an applicant on
the ground of unsuitability of location is without evidentiary support when
relevant testimony of those opposing the requested license or permit consists
entirely of opinions, generalities, and conclusions not supported by the
facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith
v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
9. In
making a decision in this matter, this Court is constrained by the record
before it and the applicable statutory and case law. Here, Petitioner meets
all of the statutory criteria enacted by the South Carolina General Assembly
for the issuance of a beer and wine permit and a license to sell liquor by the
drink, and there has not been a sufficient evidentiary showing that the
proposed location is unsuitable for Petitioner’s restaurant or that the
issuance of the permit and license in question would create problems in or have
an adverse impact upon the surrounding community. Petitioner’s restaurant is
located in a facility that was designed for, and has been used as, a restaurant,
on the grounds of an oceanfront resort in Myrtle Beach that has three other
locations on the property that are licensed for the sale of alcoholic
beverages. Further, there was no evidence in the record to suggest that
Petitioner’s sale of alcoholic beverage under a prior permit and license at the
restaurant for approximately four years presented any problems for the resort’s
management, residents, or guests. In short, nothing in the record suggests
that, given the nature of Petitioner’s business at the location and its
operations of other licensed establishments in the area, the sale of beer and
wine and liquor drinks at Petitioner’s restaurant will have an adverse impact
upon the surrounding community or will otherwise be out-of-keeping with the
character of that community. Moreover, it should be noted that the Homeowners’
Association’s opposition to Petitioner’s application is largely unfounded,
based upon concerns that are either unrelated to Petitioner’s sale of alcoholic
beverages, such as the concern with the cleanliness of its storage facilities,
or entirely speculative, such as the concern that the Association will not have
adequate control over the sale of alcoholic beverages on the resort property if
Petitioner’s application is granted. Rather, it appears that this opposition
is largely motivated by an underlying property and business dispute between
Petitioner and the resort’s new ownership. Therefore, this Court finds that
Petitioner’s restaurant is a suitable location for the sale and on-premises
consumption of beer, wine, and liquor.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that the Department shall GRANT Petitioner’s
application for an on-premises beer and wine permit and a license to sell
liquor by the drink for the premises located at 9550 Shore Drive, Suite A, in
Myrtle Beach, South Carolina.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205
Pendleton Street, Suite 224
Columbia,
South Carolina 29201-3731
October 5, 2006
Columbia, South Carolina
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