ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2002) and S.C. Code Ann. § 1-23-310 et seq.
(Supp. 2002) upon the filing of an application by Petitioner Elmore A. Bethea, d/b/a Club Alexis, ("Petitioner"), for an on-premises beer and wine permit and a sale and consumption ("minibottle") license for a location at 2245 Green Acres Loop,
Dillon, South Carolina ("the subject location"). Upon receipt of a written protest to the application, the South Carolina
Department of Revenue ("Department") transmitted the case to the Administrative Law Judge Division ("ALJD") for a
hearing. After timely notice to the parties and the Protestant, a contested case hearing was held on February 10, 2003, at
the ALJD in Columbia, South Carolina. Upon review of the relevant and probative evidence and applicable law, the
application for an on-premises beer and wine permit is granted, and the application for a minibottle license is granted upon
passing an inspection performed by the South Carolina Law Enforcement Division ("SLED") of the finished facility to
satisfy the requirements of the law. The Petitioner shall comply with certain restrictions contained herein regarding both
applications.
FINDINGS OF FACT
Having carefully considered all testimony 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. Notice of the time, date, place and subject matter of the hearing was given to all parties and to the Protestant in a timely
manner.
2. Petitioner seeks an on-premise beer and wine permit and a sale and consumption ("mini-bottle") license for the subject
location of 2245 Green Acres Loop, Dillon, South Carolina.
3. Petitioner purchased the subject location in October 2002. Petitioner plans to operate a nightclub there.
4. The subject location had been used for the operation of a nightclub in the past.
5. The Protestant, Kenneth R. McLaughlin ("Protestant"), wrote a letter to the Department protesting Petitioner's
application on the ground that the location is in a residential neighborhood with a close proximity to family and children,
and is therefore unsuitable.
6. SLED conducted an investigation of the Petitioner's establishment to determine whether or not it complied with the
applicable law. SLED's report, dated November 20, 2002, reveals the establishment failed to comply with four
requirements of 23 S.C. Code Ann. Regs. 7-19 (Supp. 2002) regarding the application for the minibottle license as of the
date of the investigation: (1) the establishment had insufficient cold storage; (2) the establishment had no food available;
(3) the establishment had no menu; and (4) the establishment did not have a grade A rating. The Department's file on the
Petitioner's application indicates that the Petitioner has now obtained a Grade A rating from the South Carolina
Department of Health and Environmental Control. At the hearing before the ALJD, the Department requested that if this
tribunal decides to grant Petitioner's application for a minibottle license, this tribunal require that Petitioner first pass an
inspection by SLED of the finished facility to satisfy the three remaining elements of having sufficient cold storage units,
food, and menus on the premises.
7. The Protestant testified at the hearing before the ALJD that he feels the subject location is inappropriate for use as a
nightclub licensed to sell alcohol because it is in a residential area. The Protestant testified that he lives nearby the
nightclub, but he cannot actually see it from his house. The Protestant presented only one other witness from the
neighborhood, who testified that she could hear loud music coming from the nightclub from her home.
8. The Petitioner testified that there is large privacy fence surrounding the subject location so that it is not readily visible to
others in the community. The Petitioner produced photographs evidencing the surrounding privacy fence. He further
testified that he plans to be present on nights when the nightclub is open, that he has purchased a home within the
neighborhood of the subject location, and that he is in the process of setting up additional security in and around the
establishment. He also testified that he has recently remodeled the subject location in order to provide sufficient cold
storage units, food, and a menu.
9. The Petitioner produced five witnesses from the community to testify on his behalf. All of the Petitioner's witnesses
testified that they have no problem with the proposed night club being located in their community. Several testified that the
Petitioner has worked to improve the landscaping in front of the nightclub, and that the inside of the nightclub is nice and
clean. Most of Petitioner's witnesses reside closer to the nightclub than the Protestant and the Protestant's sole witness;
one of the Petitioner's witnesses lives directly across the street from the nightclub, and another lives two houses over from
it. Another of the Petitioner's witnesses lives directly across the street from the Protestant, and he testified that he cannot
hear music coming from the nightclub when he is at his home.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear contested cases under the
Administrative Procedures Act ("APA"). Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the ALJD the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. § 61-4-520 (Supp. 2002), which sets forth the requirements for the issuance of a beer and wine permit,
provides in part:
No permit authorizing the sale of beer or wine may be issued unless . . .
(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.
S.C. Code Ann. § 61-4-520 (6), (7) (Supp. 2002).
3. 23 S.C. Code Ann. Regs. 7-19(A) (Supp. 2002) provides as follows:
Any business establishment that applies for or holds a sale and consumption license pursuant to Section 61-6-1610 of the
Code and is not engaged in the furnishing of lodging, must:
(1) Be equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals;
(2) Have readily available to its guests and patrons either "menus" with the listings of the various meals offered for service
or a listing of available meals and foods, posted in a conspicuous place readily discernable by the guest or patrons; and
(3) Prepare for service to customers hot meals at least once each day the business establishment chooses to be open.
23 S.C. Code Ann. Regs. 7-19(A) (Supp. 2002). As defined by the Regulation, a "kitchen" "must be adequately equipped
for the cooking and serving of solid foods, and the storage of same." 23 S.C. Code Ann. Regs. 7-19(B)(2) (Supp. 2002).
4. A mini-bottle license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 2002) if:
(1) the applicant is not a suitable person to be licensed;
(2) the store or place of business to be occupied by the applicant is not a suitable place; or
(3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated
municipality or other community.
S.C. Code Ann. § 61-6-910 (2002).
5. 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 permit 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).
6. 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).
7. Permits issued by the State for the sale of beer and wine 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 permit is also authorized, for cause, to revoke
it, that tribunal is likewise authorized to place restrictions or conditions on the permit. See Feldman v. S.C. Tax Comm'n,
203 S.C. 49, 26 S.E.2d 22 (1943).
8. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). 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.
Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 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. A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by
revocation or suspension of the permit pursuant to S.C. Code Ann. §§ 61-4-580, 61-6-100, and 61-6-1830 (Supp. 2002).
9. Giving weight to the testimony of the Petitioner and the five community residents who testified in support of the
Petitioner, most of whom live within closer proximity of the subject location than the Protestant and Protestant's sole
witness, I find that the application for an on-premises beer and wine permit should be granted. I also find that the
application for a minibottle license should be granted, but only upon the Petitioner first passing an inspection by SLED of
the finished facility to satisfy the requirements of the law, specifically the requirements of 23 S.C. Code Ann. Regs. 7-19(B)(2) (Supp. 2002) that the subject location have sufficient cold storage unit, menus, and food on the premises.
Furthermore, the Petitioner shall comply with the following restrictions regarding both applications:
(1) The Petitioner shall maintain proper lighting around the subject location; and
(2) The Petitioner shall not allow music to be played that can be heard beyond the property boundaries of the subject
location.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner's application for an on-premises beer and wine permit for the location at
2245 Green Acres Loop, Dillon, South Carolina, is granted;
IT IS FURTHER ORDERED that the Petitioner's application for a minibottle license for the location at 2245 Green
Acres Loop, Dillon, South Carolina, is granted upon passing an inspection performed by SLED of the finished facility to
satisfy the requirements of the law;
IT IS FURTHER ORDERED that the Petitioner shall comply with the restrictions set forth above regarding both the on-premises beer and wine permit and the minibottle license;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
March 6, 2003
Columbia, South Carolina |