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:
SA & JG, LLC, d/b/a Steamers Bar & Grill vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
SA & JG, LLC, d/b/a Steamers Bar & Grill
Petitioner:
3890 Highway 17 Business, Murrells Inlet, South Carolina

Respondent:
South Carolina Department of Revenue

Intervenors:
Andrew Fowler, Dale Grinolds, and Sam Scalise
 
DOCKET NUMBER:
04-ALJ-17-0170-CC

APPEARANCES:
Kenneth E. Allen, Esquire
For Petitioner

Dana R. Krajack, Esquire
For Respondent

James H. Harrison, Esquire
For Intervenors

James Barbaree, Martha Culler, Dean Gaddy, Marion Lee, Dan Mace, Robert Medlin, Mark Mighell, Jo Ann Morgan, Jack Ross, and Ralph Turner
Protestants, pro se
 

ORDERS:

FINAL ORDER AND DECISION
STATEMENT OF THE CASE

This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. Petitioner SA & JG, LLC, seeks an on-premises beer and wine permit and a restaurant minibottle license for a seafood restaurant to be located at 3890 Highway 17 Business in Murrells Inlet, South Carolina, and to be known as Steamers Bar & Grill. Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit and license because of the protests filed by several neighboring residents regarding the suitability of the proposed location and because of its own concerns regarding whether the business would be primarily and substantially engaged in the preparation and service of meals. Footnote By an Order dated July 8, 2004, three of the protestants of record, Andrew Fowler, Dale Grinolds, and Sam Scalise, were granted leave to intervene in this matter in opposition to Petitioner’s application. After timely notice to the parties and protestants, a hearing of this matter was held on August 18, 2004, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location, the permit and license restrictions voluntarily stipulated to by Petitioner, and the applicable law, I find that Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license should be granted.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, 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 March 18, 2004, Stephen J. Award, submitted an application on behalf of SA & JG, LLC, to the Department for an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 3890 Highway 17 Business in Murrells Inlet, South Carolina. This application and the Department’s file on the application are hereby incorporated into the record by reference.

2.SA & JG, LLC, which Mr. Award co-owns with his business partner, James W. Golladay, III, is a South Carolina limited liability company, organized on March 17, 2004, and currently in good standing with the South Carolina Secretary of State. SA & JG, LLC, leases the proposed location from James E. Bender through his company, CRJJ Holdings, LLC. As a recently formed company, SA & JG, LLC, has not previously held a beer and wine permit or liquor license and, as its restaurant has not yet opened, the company has not established a reputation in the local community.

3.Mr. Award and Mr. Golladay are over twenty-one years of age and do not have any delinquent state or federal taxes. Further, the South Carolina Law Enforcement Division (SLED) conducted a criminal background investigation of Mr. Award and Mr. Golladay that did not reveal any criminal arrests or convictions, and the record does not indicate that Mr. Award and Mr. Golladay have engaged in acts or conduct implying the absence of good moral character.

4.Notice of Petitioner’s application was published in the Georgetown Times, a newspaper published and circulated in Georgetown County, South Carolina, once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

5.The proposed location received a Grade A rating from, and was authorized to open for business by, the Division of Food Protection of the Bureau of Environmental Health in the South Carolina Department of Health and Environmental Control. The location has the capacity to seat sixty-eight persons simultaneously for the service of meals and has a full-service restaurant kitchen.

6.Prior to being acquired by Mr. Bender and leased to Petitioner, the proposed location was operated for approximately forty years as a popular family seafood restaurant, known as the Inlet View Restaurant, which was viewed as an asset to the surrounding community by those who now oppose Petitioner’s permit and license application. In a similar fashion, Petitioner intends to operate a bona fide seafood restaurant/American-style bar and grill at the location. The restaurant, to be known as Steamers Bar & Grill, will offer American-style menu selections, including various fried appetizers, traditional soups and salads, and standard restaurant sandwich fare; but, the main focus of the menu will be steamed seafood, including steamed mussels, clams, oysters, crawfish, crab legs, and shrimp, as well as other seafood offerings such as grouper fingers and grouper sandwiches. However, in contrast to the Inlet View, Steamers Bar & Grill will place a greater emphasis on entertainment and socialization at the restaurant. Petitioner has constructed a bar/food counter in the restaurant, has mounted several televisions in the dining area, and plans to use the decking in the front of the restaurant as an outdoor dining area and as a place for live performances of acoustic-style music.

7.The proposed location is situated along Highway 17 Business in the fishing village of Murrells Inlet. Sometimes referred to as the “Seafood Capital of South Carolina,” this area is known for its numerous seafood restaurants, which are intermixed with residential development throughout the town. The proposed restaurant in question is located adjacent to the Marina Colony Condominium Community, a group of four buildings housing thirty-two residential units. Footnote The condominiums were constructed in the mid-1970s, over a decade after the Inlet View Restaurant had opened its doors. The rear of the nearest condominium building is approximately forty-five feet from the restaurant building and its outdoor decking. However, the proposed location is separated from the condominiums by wood and brick fencing and by a line of vegetation composed of various trees and shrubs.

8.The group of Intervenors and protestants in this matter is comprised mainly of full-time and part-time residents of the Marina Colony condominiums. These individuals oppose the issuance of the permit and license in question on the ground that the proposed location is unsuitable for Petitioner’s business, given the nature of the proposed restaurant and its proximity to their residences. In particular, these residents are concerned that the restaurant will be operated as a “sports bar,” rather than as a bona fide seafood restaurant, and that, as such, the operation of the business at the location will adversely affect their quality of life. A paramount concern was the possibility that noise generated from activities on the deck in front of the restaurant, including outdoor dining and live music performances, would disturb condominium residents, particularly if those activities extended late into the evening hours.

9.On the record in open court, Petitioner stipulated to the following ten restrictions being placed on its requested permit and license in order to assuage some of the concerns of the protestants and Intervenors:

(1)There will be no live entertainment on the licensed premises after 10:00 p.m. in the evening, and at no time will any live entertainment start before noon;

(2)Absolutely no “adult entertainment” will be allowed on the licensed premises at any time;

(3)Any outside live entertainment during the hours set forth in Stipulation #1 will be at least 120 feet from any residential property;

(4)All Georgetown County ordinances will be observed and strictly followed, especially as they relate to entertainment and noise;

(5)All employees serving alcohol will receive training from either SLED or TIPS, or another trainer approved by the South Carolina Department of Revenue;

(6)External lighting will remain as is, with the exception of “tiki” torches. Any future modification to the external lighting will require the prior written approval of a representative from Marina Colony;

(7)To the extent requested by Marina Colony, the applicant will provide and install No Parking/Tow Away Zone signs;

(8)The premises will be policed for litter each day prior to opening;

(9)Any outside entertainment will only be on Fridays, Saturdays, and Sundays, and will end at 10:00 p.m; and,

(10)All food and drink service outside will cease at 10:00 p.m.

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. 2003), S.C. Code Ann. § 1-23-600(B) (Supp. 2003), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003).

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.The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

4.S.C. Code Ann. § 61-4-520 (Supp. 2003) 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).

5.S.C. Code Ann. § 61-6-1820 (Supp. 2003) sets forth the basic criteria for the issuance of a minibottle license. 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).

6.Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or 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).

7.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).

8.In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

9.And, “a liquor license or permit may be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).

10.In the case at hand, I find that the proposed location is suitable for Petitioner to operate a seafood restaurant with an on-premises beer and wine permit and a restaurant minibottle license. The location has been operated for some forty years as the Inlet View seafood restaurant in keeping with the character of the greater Murrells Inlet community, and, for the past twenty-five years or so, the restaurant has harmoniously coexisted with the neighboring condominium complex. And, while there was some uncertainty in the testimony regarding the precise times and types of licensure, it was established that, during its several decades of operation, the Inlet View did serve alcoholic beverages. Footnote Given this prior history of amicable coexistence between the seafood restaurant at the location and the neighboring residents, I find that Petitioner’s proposed restaurant operations, particularly as restricted through the stipulations it offered at the hearing, will not be detrimental to the welfare of the surrounding community. The protestants and Intervenors are correct that Petitioner’s restaurant will place a greater emphasis on providing a venue for entertainment and socialization, including outdoor dining and entertainment, than did the Inlet View. However, the evidence in the record indicates that Petitioner’s business will be a bona fide seafood restaurant, not a bar or nightclub as feared by the protestants and Intervenors. As such, it will be able to peaceably coexist with the neighboring condominium community, much as other restaurants in Murrells Inlet coexist with nearby residences. Moreover, many of the protestants’ and Intervenors’ concerns, such as those regarding noise disturbances, intrusive lighting, and litter problems, have been substantially ameliorated by the stipulations voluntary adopted by Petitioner.

11.In reaching a decision in this matter, this tribunal is constrained by the record before it and by the applicable statutory and case law. Here, Petitioner meets all of the statutory and regulatory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit and a restaurant minibottle license, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s proposed restaurant or that the issuance of the permit and license would have an adverse impact on the surrounding community. Therefore, I find that Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license, as restricted by the stipulations stated above, should be granted.

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 restaurant minibottle license for the premises located at 3890 Highway 17 Business in Murrells Inlet, South Carolina, subject to the stipulated restrictions set forth above.

AND IT IS SO ORDERED.


______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667


September 1, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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