ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 61-2-90 (Supp. 2003), § 61-4-520 (Supp. 2003), and S. C. Code Ann. §§ 1-23-310 et
seq. (1986 & Supp. 2003), for a contested case hearing. Glenn R. Rucker seeks an on-premise beer
and wine permit and restaurant sale and consumption license for The Gin, a location currently under
construction to be converted from a cotton gin to a restaurant and bar. A hearing was held in this
matter on July 27, 2004, at the offices of the Administrative Law Court in Columbia, South Carolina.
At the beginning of the hearing the Protestants, Kendall and Patty McCormack, by and through their
attorney, made a motion to intervene. That motion was granted and the caption was amended to add
them as Respondents.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Department, and the Respondent/Intervenors.
2.The Petitioner seeks an on-premise beer and wine permit and restaurant sale and
consumption license for “The Gin” located in Calhoun County at 5205 Old State Road, St.
Matthews, South Carolina. Glenn R. Rucker, the sole proposed owner of this business, is leasing the
location under a ten (10) year lease. The proposed location is in a rural area that is mostly
surrounded by farm land. However, there are residences in the vicinity of the location. Mr. Rucker
is the proprietor of another location, The Calhoun Saloon, also situated in Calhoun County. Finally, construction on the location has not been fully completed and, therefore, the location will have to
undergo a final inspection prior to opening.
3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2003)
concerning the residency and age of the applicant are properly established. Furthermore, Mr.
Rucker has not had a permit or license revoked within the last two (2) years and public notice of
the application was lawfully posted both at the location and in a newspaper of general circulation.
4.The applicant has no criminal record and is of sufficient moral character to receive
a beer and wine permit and a sale and consumption license.
5.The proposed location is not unreasonably close to any church, school or
playground.
6.The Protestants, Kendall and Patty McCormack, object to the Petitioner receiving
a permit and license because of:
a.The noise that would be generated by the Petitioner’s business;
b.The impact of the business upon their property values;
and
c.The impact upon traffic in the area.
One of the reasons the McCormacks moved to this area was because it was a quiet area. They
contend that quietude would be significantly diminished by the Petitioner’s business. In support
of their contention the McCormacks presented evidence concerning noise that emanated from
the location as a result of a turkey shoot.
The McCormacks’ home is three-fourths (¾) of a mile from the location by vehicle.
However, their home is approximately two thousand (2,000) feet in a straight path to the
proposed location. Nevertheless, a row of hedges and a stand of trees would buffer the sound
that may emanate from the proposed location. Moreover, when the turkey shoots were held, the
only sound that could be distinctly heard inside the local residences was the sound of gun shots.
The loud voices and yelling of those attending the turkey shoots could only be heard if one was
outside.
Additionally, the Petitioner stipulated at the hearing that no more turkey shoots will be
held at the location. Nor will the location attract individuals who would behave loudly in the
parking area. The Petitioner emphasized the even though The Calhoun Saloon does not annoy its
neighbors with loud noise, that this proposed location will not be operated as a bar. Rather, The
Gin will be a restaurant that may occasionally have live bands playing blues, shag or country/
western music though he does not plan to have a dance floor.
Furthermore, the Petitioner has
made significant efforts to sound proof the building.
The McCormacks also expressed concern about the danger created by traffic exiting the
proposed location. However, the evidence presented did not establish that there is an existing
traffic danger in the vicinity of the proposed location or that the proposed location is in a unique
area that would presumably create a traffic danger. In fact, though several turkey shoots had
been held at the location, the evidence did not establish that a traffic hazard occurred as a result
of those events.
7.This location is situated near several residences. However, the owners of the
residences closest to the proposed location did not object to this license/permit. On the other
hand, although the proximity to the McCormack’s residence in particular does not make the
location unsuitable, I nonetheless find that if excessive noise emanates from the location, the
residential area would be adversely effected, thereby warranting restrictions on this permit.
Thus, I find that the proposed location is suitable for an on-premise beer and wine permit
and sale and consumption license with the restrictions set forth below. These restrictions are
necessary to protect the integrity of the community. Nevertheless, my determination that the
location is suitable, even with the restrictions below, is based upon the Petitioner’s
representations of the character of the business. Operation of the proposed location in any other
manner than that approved within this Final Order and Decision certainly presents a greater
potential adverse impact on the community. Consequently, the proposed location is not approved
for operation of any business other than described herein. Furthermore, if the applicant does not
comply with these restrictions set forth below, the location will no longer be suitable for a
permit/license.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1 -23-600 (Supp. 2003) grants jurisdiction to the
Administrative Law Court to hear contested cases under the Administrative Procedures Act.
Additionally, S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2003) sets forth the requirements for the
issuance of a beer and wine permit.
3. A license for the sale and consumption of alcoholic beverages must not be granted
unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2003) are met. That section requires
that a mini-bottle license be granted only to a bonafide business engaged in either the business of
primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not
only must the principals and applicant be of good moral character but the business must also
have a reputation for peace and good order.
4.S.C. Code Ann. § 61-6-20(2) (Supp. 2003) sets forth:
‘Bona fide engaged primarily and substantially in the preparation and serving of
meals’ means a business which has been issued a Class A restaurant license prior
to issuance of a license under Article 5 of this chapter, and in addition provides
facilities for seating not less than forty persons simultaneously at tables for the
service of meals.
Furthermore, in order to meet the requirements of Section 61-6-20(2), the location must meet the
requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003).
5.Section 61-6-1820 also provides that a sale and consumption license shall not be
granted unless the proposed location meets the minimum distance requirements from churches,
schools, or playgrounds as set forth in S.C. Code Ann. § 61-6-120 (Supp. 2003).
6.Although "proper location" is not statutorily defined, the Administrative Law
Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The
determination of suitability of 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 upon the community within which it is to be located. Kearney v. Allen,
287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for
this Court to consider any evidence that demonstrates the adverse effect the proposed location
will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt,
258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801
(1973). Furthermore, 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. Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).
7.“A liquor license or permit may properly be 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).
8.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). I conclude that this proposed location would not adversely impact this community if the
location is operated with strict adherence to the restrictions set forth below.
9.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. They are, rather, privileges granted in the exercise of the state’s police power
to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance
of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman
v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, S.C. Code Ann. Regs.
7-200.1(I) (effective June 27, 2003) authorizing the imposition of restrictions on permits,
provides:
Any written stipulation and/or agreement which is voluntarily entered into by an
applicant for a permit or license between the applicant and the Department, if
accepted by the Department, will be incorporated into the basic requirements for
the enjoyment and privilege of obtaining and retaining the permit or license and
shall have the same effect as any and all laws and any and all other regulations
pertaining to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute
sufficient grounds to revoke said license.
10.The Petitioner meets the statutory requirements for an on-premise beer and wine
permit and a restaurant sale and consumption license at this location with the following
restrictions set forth below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit and restaurant
sale and consumption license of Glenn R. Rucker, d/b/a The Gin, be granted, upon the Petitioner
entering into a written agreement with the Department incorporating the following restrictions set
forth below:
The Petitioner shall not allow excessive noise to emanate from this location. For
the purposes of this restriction, noise from the location shall include both the
business and sound emanating from the parking area. Also, any noise that is
distinctly audible within the McCormack’s residence to an ordinary person with
closed doors and windows shall be considered excessive.
IT IS FURTHER ORDERED that a violation of the above restrictions be considered a
violation against the permit/license and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department resume processing the Petitioner’s
application and issue an on-premise beer and wine permit and restaurant sale and consumption
license to the Petitioner upon payment of the proper fees and costs.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson III
Administrative Law Judge
August 26, 2004
Columbia, South Carolina |
