ORDERS:
AMENDED FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This Amended Final Order and Decision, made upon request of the parties, is substituted in lieu of the Final Order and
Decision of September 27, 2002.
This matter is before the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2001) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2001). J&M Enterprises, d/b/a SBB Four Corners seeks a on-premise beer and wine permit and a sale and consumption license ("mini-bottle license) for the location at 11980 Highway
17 By-Pass in Murrells Inlet, SC.
Formal protests were filed by Isabella Cerny, Sue Conklin, Mr. and Mrs. S. Devita, Mary Ann Dudley, Beth Eakins, Mr.
and Mrs. S. Farraday, Vera Faw, Donna Hall, Julie E. Harbin, Walter Harkins, Pamela Hobeika, Jasmine Holsinger, Bryce
Holsinger, Rose and John Jardel, Pat Keelan, Robert and Daisy Lacovey, Andrew Lawson, Ross Lawson, Edward Lazarz,
Tammy Mollohan, Sandy and Richard Martin, Connie Miller, Kevin Niedt, Cliff Obermeyer, Joseph O'Brien, Brown L.
Phillips, Rosemary and Michael Shaver, James Stultz, Ward Tabor, Candy Threlkel, and Louvie and David Threlkel, all of
whom live in residential communities near the proposed location. Pamela Hobeika, Raymond Harbin, Connie Miller, and
Frank O'keefe were protestants attending the hearing.
On August 12, 2002, the Department transmitted the case to the Division. After notice to all the parties and the Protestants,
the undersigned judge held a contested case hearing on Monday, September 23, 2002 at the offices of the Division in
Columbia, South Carolina.
At the beginning of the hearing, the undersigned addressed a Motion to Intervene made by Raymond Harbin. As this
Motion was not made until the hearing, and good cause not being shown, the Motion was denied. During the hearing,
James Mills a/k/a Jimmy Motley, Bill Pate, and Steven Jackson testified on behalf of the Petitioner. Pamela Hobeika,
Raymond Harbin, and Connie Miller testified on behalf of the Protestants.
Based on the testimony at the hearing and the certified copies of documents forwarded by the Department and entered into
the record, I find that the application should be granted, with restrictions, in the name of James Mills.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and
taking into consideration the burden of persuasion by the parties, I make the following findings of fact by a preponderance
of the evidence:
- Notice of the date, time, place, and subject matter of the hearing was given to the parties and the Protestants.
- The Petitioner, J&M Enterprises, d/b/a SBB Four Corners, which is located at 11980 Highway 17 Bypass, Murrells
Inlet, South Carolina, applied for an on-premises beer and wine permit and a sale and consumption license. According
to the application, the permit and license would be issued in the name of James Mills.
- On April 11, 2002, SBB Four Corners, LLC ("SBB LLC") filed Articles of Incorporation with the office of the
Secretary of State for South Carolina. The organizers of SBB LLC are James D. Mills and James S. Jackson.
- James D. Mills is forty-nine years of age. He is a resident of South Carolina and has been for more than thirty days.
Mr. Mills has an electrical contracting license. I find Mr. Mills is of good moral character. Furthermore, there was no
evidence presented that Mr. Mills has had a beer, wine, or liquor license previously revoked.
- James S. Jackson is forty-four years of age. He is a resident of South Carolina and has been for more than thirty days.
Mr. Jackson has prior convictions, all of which are at least ten years old. Whereas Mr. Jackson has paid his debt to
society, and appears to be an honest, hardworking individual, I find that he is of good moral character. Furthermore,
there was no evidence presented that Mr. Jackson has had a beer, wine, or liquor license previously revoked..
- The main building of the proposed location fronts on the Bypass and is separated therefrom by four rows of parking
spaces. The segment of the Bypass in front of the proposed location is a four-lane highway with a grassy median
separating the two lanes that run north from the two lanes that run south.
- There are commercial properties and businesses located along both sides of the Bypass in the vicinity of the proposed
location. There are several restaurants in the immediate area licensed to sell alcoholic beverages. Also, located along
the eastern side of the Bypass in the immediate vicinity of the proposed location are a bank, a storage business, and a
shopping mall.
- The proposed location is not unreasonably close to any church, school, or playground.
- The Protestants testified that they were concerned about the noise from motorcycles, crowd noise, traffic problems, and
the exposure of children to immoral behavior.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
- Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1 of the 1976 Code, as amended,
the South Carolina Administrative Law Judge Division has jurisdiction in this matter.
- The sale of beer and wine is a lawful enterprise in South Carolina, as regulated by the State.
- S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for the issuance of a beer and wine
permit, provides:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to
be employed on the licensed premises are of good moral character.
(2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days
before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the
date of application.
(3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least
thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days
before the date of application or has been licensed previously under the laws of this State.
(4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to
him.
(5) The applicant is twenty-one years of age or older.
(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.
(7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences,
schools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.
(8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give
notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The
department must determine which newspapers meet the requirements of this section based on available circulation figures.
However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are
published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer or
wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by
the department.
(9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of permit sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
4. S.C. Code Ann. § 61-6-1820 (Supp. 2000), which sets forth the requirements for the issuance of a sale and
consumption ("minibottle") license, provides in part:
The department may issue a license under subarticle 1 of this article upon finding:
(1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and
substantially in the preparation and serving of meals or furnishing of lodging.
(2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace
and good order in its community, and its principals are of good moral character.
(3) As to business establishments or locations established after November 7, 1962, Section 61-6-120 has been complied
with.
(4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give
notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in
business. The department must determine which newspapers meet the requirements of this section based on available
circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the
advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An
applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved
by the department.
(5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of license sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
(6) The applicant is twenty-one years of age or older.
(7) The applicant is a legal resident of the United States, has been a resident of this State for at least thirty days before the
date of application, and has maintained his principal place of abode in this State for at least thirty days before the date of
application.
(8) The applicant has not been convicted of a felony within ten years of the date of application.
- 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 permit to sell beer and wine using broad but not unbridled discretion. Byers v.
South Carolina Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 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).
6. 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 a 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).
7. 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. 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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
8. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school, or playground is a
proper ground on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina
Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). In this case, the location is not within an
improper proximity to churches, schools, or playgrounds.
9. The judge may consider whether there have been any law enforcement problems in the general area. Schudel v. South
Carolina Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Absent substantial evidence of any
law enforcement problems at this location thus far, the potential for problems is not a basis on which to deny the
application in this case.
10. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the
statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not 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).
11. The proposed location is zoned as highway commercial. There are many businesses near the proposed location,
including businesses that have beer and wine permits for on-premise or off-premise consumption.
12. I understand the Protestants' concerns. The Protestants' opinions, however, are not a valid legal basis for denying the
application in this case. Also, as explained at the hearing, the surrounding residential communities will be served better in
this case if the permit is granted with restrictions rather than denied. If denied, "SBB Four Corners" could remain open 24
hours per day, allowing customers to bring their own beer and wine for on-premise consumption. As a result, the problems
about which the Protestants are complaining could be worse. These issues can be addressed most efficiently by granting
the permit and license with restrictions.
13. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are
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 permit is also
authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or
license. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
14. A violation of any of the restrictions or of any regulation or section of the Alcoholic Beverage Control Act is
punishable by revocation or suspension of the permit or license pursuant to S.C. Code Ann. § 61-4-580 (Supp. 2001).
16. Taking into consideration the circumstances of this location, I conclude the beer and wine permit and the sale and
consumption license should be subject to the following restrictions:
- The proposed location is prohibited from selling alcohol between 1:00 a.m. and 11:00 a.m.;
- Of the three accesses from Highway 801 to the lot of the proposed location, the middle access must be
closed at all times during special events, the access farthest from the Bypass must be the only entrance, and
the access nearest to the Bypass must be the only exit;
- During the hours of operation during special events, at least one retired or off-duty police officer must be
stationed at the designated entrance, another at the designated exit, and another across Highway 801 from
the designated entrance in the right-of-way to prevent motorcycle traffic from traveling west on Highway
801;
- A wooden privacy fence at least 8 feet high must extend along the entire perimeter of the property,
excluding the designated entrance and exit and the section of property along Highway 17. This fence must
be erected within 30 days of the date of this Amended Order;
- No outside "burn-out" pits are allowed at the location;
- No "racing simulators are allowed at the location;"
- Any "mechanical bull" on the property must cease operating at 10 p.m.;
- The State Law Enforcement Division ("SLED") must have an agent check the location for compliance with
these restrictions daily during special events. "SBB Four Corners" is required to give SLED ten days
notice prior to holding a special event which is planned subsequent to the issuance of this Order;
9. Bands may not play outside past 11:00 p.m.;
- Customers will not be allowed to park on the roadway. Petitioner shall cooperate with local law enforcement to ensure
such parking does not occur;
- Any conviction by law enforcement for violation of a noise ordinance shall count as a violation of the permit and
license.
ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the application for an on-premise beer and wine permit and a sale and consumption
license for the location known as "SBB Four Corners," which is located at 11980 Highway 17 Bypass, Murrells Inlet, South
Carolina is granted, subject to the restrictions above, in the name of James D. Mills.
IT IS FURTHER ORDERED that the permit and license shall only be issued by the Department upon James D. Mills
signing a written statement to be filed with the Department to adhere to the restrictions as set forth in this order.
IT IS FURTHER ORDERED that a violation of any of the restrictions will be considered a violation against the permit
and license and may result in a fine, suspension, or revocation of the permit.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
October 11, 2002
Columbia, South Carolina |
