Monday, December 11, 2017

SC Administrative Law Court Decisions

CAPTION:
Boyd J. Jones, d/b/a The Locker Room vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Boyd J. Jones, d/b/a The Locker Room
6201 Two Notch Road, Columbia, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0264-CC

APPEARANCES:
For the Petitioner:
Charles E. Johnson, Esquire

For the Protestants:
Capt. E.N. Mauney, Pro Se, and Donald E. Rothwell, Esquire

For the Department:
Dana R. Krajack, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. The Petitioner, Boyd Jones, seeks an on-premise beer and wine permit and sale and consumption license for The Locker Room at 6201 Two Notch Road, Columbia, South Carolina. A hearing was held before me on October 12, 2004, at the offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina.

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 proof upon the parties and the Protestants, 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 the Petitioner, the Protestants, and the Department of Revenue (Department).

2.The Petitioner seeks an on-premise beer and wine permit and sale and consumption license for The Locker Room, located at 6201 Two Notch Road, Columbia, South Carolina. Mr. Jones set forth that he plans to run this location as a sports bar that serves food. However, he also testified that the nature of this location may change in the future.

3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2003) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation. Finally, Boyd Jones, the proposed owner of the location, has no criminal record.

4.The proposed location is not unreasonably close to any school or playground. However, this location will be in the direct vicinity of two other night clubs on Two Notch Road: Studio 54 and Lennox VIP.

5.Upon processing the Petitioner's application, the Department of Revenue (Department) had two concerns that resulted in this permit and license being denied. The first concern was with the location's food service. At the time Mr. Jones filed his application, the location did not have a "Grade A" food service license or a menu. However, prior to the hearing into this matter, the Petitioner obtained his “Grade A” license and the Department agreed to re-inspect the location after it begins operating should this permit and license be granted.

The Department's second concern was the availability of parking spaces for The Locker Room's patrons. Only twelve (12) parking spaces are at the location. However, Mr. Jones has two written parking agreements that would provide additional spaces. Those agreements provide for:

a.Thirty (30) spaces at a paved car lot located approximately seven blocks (or two miles) from the location and an additional twenty-five (25) spaces on a grassy area around the car lot. The Petitioner plans to use valet parking from The Locker Room to the car lot and he also plans to have security at the lot. This lot would be available from 7:00 p.m. to 3:30 a.m.

b.Twelve (12) to fifteen (15) spaces at Jean's Auto Repair, located to the side of The Locker Room from 6:00 p.m. to 3:30 a.m.

6.Protestant L.A. Garrett is the general manager of Lennox VIP, located adjacent to the location. He explained that his business had problems with this location, as it was previously run. Patrons would park in his lot and would not cooperate with his security. He also believes that The Locker Room will be under the same management that ran the location when it was previously open.

Captain E.N. Mauney of the Richland County Sheriff's Department, also protested this location as the Chief of the northeast region. She established that this location was previously run as a sex club with questionable activities taking place on the premises. In fact, a previous application for the location was denied. Additionally, Captain Mauney clarified that the parking situation in the area was problematic and that the saturation of "night clubs" in the vicinity has created a burden on law enforcement.

7.I find that the location does not have adequate parking, will create an undue burden upon law enforcement and result in an overall adverse impact on the community. Mr. Jones intends to provide valet parking for his customers when parking is unavailable in the spaces at his location and Jean's Auto Repair. Nevertheless, that valet parking will be to an area about two miles from the location. That distance is simply an impracticable means of providing for parking especially in light of the nature of the area as described by Mr. Garrett. Moreover, though the Petitioner apparently has parking agreements, the evidence did not establish that those agreements could not be cancelled at any time or that the parties entering the agreements had the authority to bind the owners of the property. The unrefuted evidence also suggests that this location will be operated under the same management that previously improperly ran the location. Accordingly, I find that the Petitioner’s proposed location is not suitable for an on-premise beer and wine permit and restaurant sale and consumption 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.A beer and wine permit is neither a contract nor a property right. It is, rather, a privilege granted in the exercise of the State's police power “to do what otherwise would be unlawful to do. . . .” Feldman v. South Carolina Tax Comm’n, 203 S.C. 49, 26 S.E. 2d 22 (1943). S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2003) set forth the requirements for the issuance of a beer and wine permit. In particular, Section 61-4-520(6) vests the Administrative Law Court, as the trier of fact, with the authority to determine if the proposed place of the applicant’s business is a “proper” one. Although “proper location” is not statutorily defined, in making that determination, the Administrative Law Court may consider any evidence that is adverse to the community. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In other words, the Court’s 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 on the community” within which it is to be located. Kearney at 337. Additionally, it is 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).

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.

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.

In order to meet the requirements of Section 61-6-20(2), the location must also meet the requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003). Additionally, 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).

4.“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). Nevertheless, 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).

5.I find that the Petitioner failed to meet the requirements for holding an on-premise beer and wine permit and restaurant sale and consumption license at the proposed location.

ORDER

Based upon the above Findings of Fact and Conclusions of Law:

IT IS HEREBY ORDERED that the Petitioner's application for an on-premise beer and wine permit and restaurant sale and consumption license be denied.

AND IT IS SO ORDERED.



_________________________________

Ralph King Anderson, III

Administrative Law Judge


December 7, 2004

Columbia, South Carolina