South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
 
DOCKET NUMBER:
99-ALJ-17-0386-CC

APPEARANCES:
James H. Harrison, Attorney for Petitioner

Arlene D. Hand, Attorney for Respondent (excused from appearance)

Lorenda & Ralph Pridgen, pro se, Ronnie Funderburk, pro se, W.C. Gordon, Sr., pro se, Joseph and Mary Pratcher, pro se, Protestants
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Code Ann. Regs. 7-90 (1976) upon a request for a contested case hearing. The Petitioner, Philip W. Lang d/b/a Ruby Lee's, seeks an on-premises beer and wine permit and a business sale and consumption minibottle license. After the Protestants filed written protests with the South Carolina Department of Revenue (DOR), and upon the Petitioner's request, this matter was transmitted by the DOR to the Administrative Law Judge Division (ALJD) for a hearing. A hearing was held on September 21, 1999 at the ALJD in Columbia, South Carolina, after timely notice to the parties and the Protestants.



THE PROTESTANTS

Protestants Ralph and Lorenda Pridgen expressed several concerns by letter: (1) the business is located in a residential neighborhood surrounded by individual homes; (2) long and loud noise, as well as unsightly litter, would be detrimental for their neighborhood; (3) an increase in traffic would be especially dangerous for the area children; (4) their property's resale





value would decrease; (5) there is a church one block away; and (6) renewing the license would be a poor example for the neighborhood.

Protestants Ronnie Funderburk, W.C. Gordon, Sr., and Joseph Pratcher signed and submitted similar letters.

Implicitly acknowledging that the noise is a primary complaint, Mrs. Pridgen testified that noise was only one part of the problem. Specifically, she testified that the area is primarily residential and that the area residents did not feel they needed this type of business in the area. Further, she noted that the litter and the traffic were problems and were a poor representation of the neighborhood. Finally, she said that this establishment had caused a decrease in local property values.

Protestant Funderburk also complained of increased traffic, blowing car horns, and drag racing in the area which he attributed to the Petitioner's location. Further, he also felt the property values in the area had decreased because of a club so close. As evidence, Protestant Funderburk offered the county noise ordinance, a map he drew, and a March 1997 advertisement for Ruby Lee's. He took issue with the Petitioner's characterization of the proposed location as a restaurant, notwithstanding that the Petitioner offers sandwiches. Protestant Funderburk asserted the proposed location is merely a club.

Protestant Gordon similarly testified about his concerns with the type and the quality of the business, noting a library or home work center would be a better use for the building. Further, he said he sends his son out in his yard to retrieve empty beer cans and other litter. Protestant Gordon stated he could hear the music from Ruby Lee's in his bedroom. He stated the business affects local property values.

Protestant Joseph Pratcher testified that property values were affected and added that he was afraid he or his family members might become a victim of the club.

Protestant Mary Pratcher indicated that noise from Ruby Lee's patrons were a detriment to her health. In particular, she complained of noise from cars, trucks, and motorcycles that wake her up and cause her difficulty in going back to sleep. She stated this place is not helping her neighborhood at all.



Paul Allen Funderburk, although not a Protestant, was permitted to testify. Mr. Funderburk, an area builder, added that no one wants to build in the area because of the proximity of available land to the location. He estimated that barely one house per year was being built in the area.

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. The Petitioner, Philip W. Lang d/b/a Ruby Lee's, seeks an on-premises beer and wine permit and a business sale and consumption minibottle license for his establishment located at 200 N. Trade Street, Cheraw, South Carolina, in Chesterfield County.

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 protests. The motion was granted.

3. The parties and the Protestants were provided timely and proper notice of the time, date, place and subject matter of this hearing.

4. The Protestants did not move to intervene.



THE PETITIONER

5. There is no evidence that the Petitioner does not have the required degree of moral character to hold the requested permits. See S.C. Code Ann. § 61-4-520(1) (Supp. 1998) & S.C. Code Ann. § 61-6-1820(2) (Supp. 1998).

6. The Petitioner is a legal resident of the United States, has been a legal resident of South Carolina for 30 days prior to filing the application, and has his principal place of abode in South Carolina. See S.C. Code Ann. § 61-4-520(2) (Supp. 1998) and S.C. Code Ann. § 61-6-1820(7) (Supp. 1998).



7. The Petitioner has not had any similar permit revoked within two years of the date of the current application. See S.C. Code Ann. § 61-4-520(4) (Supp. 1998).

8. The Petitioner is at least twenty-one years old. See S.C. Code Ann. § 61-4-520(5) (Supp. 1998) and S.C. Code Ann. § 61-6-1820(6) (Supp. 1998).

9. The Petitioner has not been convicted of a felony within ten years of the date of his application. See S.C. Code Ann. § 61-6-1820(8) (Supp. 1998).



THE LOCATION

10. The proposed location is not within the city limits. There is no church, school, or public playground within 500 feet of the proposed location.

11. Currently, the Petitioner holds both a beer and wine permit and a business sale and consumption minibottle license for this location. The Petitioner has operated Ruby Lee's for approximately three years.

12. The Petitioner intends to continue to offer beer, wine, liquor, and meals. The Petitioner will provide recorded and live music, a pool table, and video games. There are, however, no video poker machines in the proposed location.

13. The Petitioner stated that the hours of operation will be Friday from 8:00 p.m.-- until; and Saturday from 8:00 p.m. until midnight. The establishment will be closed Sunday through Thursday. Further, the Petitioner resides within a private area of the proposed location.

14. The Chesterfield County Sheriff's Office has responded to loud noise complaints approximately 19 times without finding that there was excessive noise coming from the location. On one occasion, the responding officer was only 60 feet from the location when the call from the dispatcher was received.

15. Although complaints regarding loud noise have been called into the sheriff's office, the Chesterfield County Sheriff did not protest the renewal Application.

16. In order to reduce sound from the building, the Petitioner has placed 13.5 inches of insulation in the ceiling of the building and has carpeted the interior walls. Further, the Petitioner has permanently closed each window and sealed each opening. As for the front door, a foyer-type area with two sets of doors works as a buffer to any music that might emanate from the location when someone opens the door. The Petitioner also testified he purchased a decibel meter and regularly checks the boundaries of his property to insure that the sounds emitted from the location are not excessive. The Petitioner is also willing to work with area residents.



CONCLUSIONS OF LAWBased 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 in this matter pursuant to Chapter 23 of Title 1 of the 1976 Code, as amended.

2. The Petitioner meets the statutory requirements to hold the requested permits. See S.C. Code Ann. § 61-4-520 (Supp. 1998) and S.C. Code Ann. § 61-6-1820 (Supp. 1998).

3. Under S.C. Code Ann. § 61-4-520 (Supp. 1998), no beer and wine permit may be granted unless the location of the place of business is suitable. Similarly, the location must be suitable prior to the DOR's issuance of a business sale and consumption minibottle license. S.C. Code Ann. § 61-6-1820 (Supp. 1998). Although proper location is not statutorily defined, broad discretion is vested in the ALJD in determining the fitness or suitability of a particular location. See 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. Each case must be decided on its own facts. Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992) (balancing the respective interest of the petitioner and the members of the community to determine whether the requested permit should issue); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (noting the decision to issue a permit rests in the sound discretion of the commission).

5. 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 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1998); 48 C.J.S. Intoxicating Liquors § 119 (1981).

6. Some of the issues raised by the Protestants are zoning issues. The authority to address zoning issues does not rest with this tribunal but rather is vested in the Protestants' local government.



7. I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to schools, churches, and playgrounds. Reasonable measures have been taken to reduce the noise being emitted from the location, and Petitioner is willing to make other reasonable modifications which may be suggested by the area residents. Moreover, the Chesterfield County Sheriff's Department did not protest the application despite calls regarding the noise. The Sheriff's reports in the record do not indicate the location has been a source of traffic problems. Based on the evidence presented, including but not limited to the Sheriff's reports, I feel compelled to conclude that the Application for renewal must be granted.

8. Accordingly, the application for renewal of the on-premises beer and wine permit and business sale and consumption minibottle license must be granted.



ORDER

THEREFORE, the DOR shall renew the Petitioner's beer and wine permit and his business sale and consumption minibottle license for his establishment located at 200 N. Trade Street, Cheraw, South Carolina.

AND IT IS SO ORDERED.



______________________________

C. DUKES SCOTT

Administrative Law Judge





September 23, 1999

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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