ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq.
(2005) for a contested case hearing. Petitioner Buckshots Lounge seeks an on-premises beer and
wine permit and a non-profit private club minibottle license for a private club, known as
“Buckshots Lounge,” located at 4103 Chesterfield Highway in Cheraw, South Carolina.
Respondent South Carolina Department of Revenue (Department) would have granted the permit
and license but for the protest filed by the Chesterfield County Sheriff’s Office regarding the
suitability of the proposed location. Accordingly, the Department was excused from appearing
at the hearing of this matter.
After timely notice to the parties and the protestant, a hearing of this case was held two
weeks ago, on April 14, 2005, at the South Carolina Administrative Law Court in Columbia,
South Carolina. Based upon the evidence presented concerning the suitability of the proposed
location and upon the applicable law, I find that Petitioner’s application for an on-premises beer
and wine permit and non-profit private club 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 November 2, 2004, Michael Brigman submitted an application on
behalf of Buckshots Lounge to the Department for an on-premises beer and wine permit and a
non-profit private club minibottle license for the premises located at 4103 Chesterfield Highway
in Cheraw, South Carolina. This application and the Department’s file on the application are
hereby incorporated into the record by reference.
2.Petitioner Buckshots Lounge is a South Carolina non-profit corporation,
incorporated on October 29, 2004, and currently in good standing with the South Carolina
Secretary of State. Michael Brigman, who is known as “Buckshot,” is the sole owner and
president of Buckshots Lounge, and is designated as the sole incorporator of and registered agent
for Buckshots Lounge in its filings with the Secretary of State. The articles of incorporation for
Buckshots Lounge specify that the corporation is a non-profit, public benefit corporation, and its
bylaws set forth requirements such that the corporation complies with 23 S.C. Code Ann. Regs.
7-401.4(A)-(F) (Supp. 2004). There is no evidence in the record suggesting that Buckshots
Lounge does not have a reputation for peace and good order in the surrounding community.
3.Mr. Brigman is over twenty-one years of age and does not have any delinquent
state or federal taxes. Further, the South Carolina Law Enforcement Division (SLED) conducted
a criminal background investigation of Mr. Brigman that did not reveal any criminal arrests or
convictions, and the record does not indicate that Mr. Brigman has engaged in acts or conduct
implying the absence of good moral character. In addition, Mr. Brigman’s daughter, Ashley
Brigman, who serves as secretary for Buckshots Lounge, is over twenty-one years of age, has no
delinquent state or federal taxes, and appears to be a person of good moral character.
4.Notice of Petitioner’s application was published in The Cheraw Chronicle, a
newspaper of general circulation in Cheraw, 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 is located on Highway 9, also known as Chesterfield
Highway, directly across the highway from the Cheraw Municipal Airport in a rural area of
Chesterfield County. The building housing Buckshots Lounge was constructed in the late 1930s
and has been licensed for the sale of alcoholic beverages for a number of years, most recently as
the Airport Lounge. There are no churches, schools, or playgrounds within five hundred feet of
the proposed location. And, while there are two churches within the general area surrounding
the proposed location, both of these churches are well over one thousand feet away from the
location. There are also approximately four residences located within several hundred feet of the
proposed location. However, no representatives of these churches or residents of these homes
have filed objections to Petitioner’s application or otherwise lodged complaints against
Petitioner’s lounge.
6.Mr. Brigman leases the proposed location from Daniel Sellers, and seeks a permit
and license to operate a non-profit private club at the location. Between September 2004 and
February 2005, Mr. Brigman operated the location as Buckshots Lounge under a temporary
permit and license. During that time, Buckshots Lounge operated without incident. Further, at
the hearing of this matter, Mr. Brigman and two employees of Buckshots Lounge described the
steps they took during the lounge’s temporary operations to ensure that the lounge was operated
in a lawful, orderly manner.
7.The Chesterfield County Sheriff’s Office primarily opposes Petitioner’s
application because of the proximity between the lounge and the two churches in the area. The
sheriff’s office also noted that it had received a complaint about sales of alcoholic beverages to
underage individuals at the lounge. However, as noted above, the two churches in question are
both well over one thousand feet from the location and have not complained to the sheriff’s
office, the Department, or this tribunal regarding the operations of Buckshots Lounge. Further,
the sheriff’s office was not able to substantiate the complaint regarding underage drinking at the
lounge.
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. 2004), S.C. Code Ann. § 1-23-600(B)
(Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).
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. 2004) 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. 2004) 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.However, without sufficient evidence of an adverse impact on the community, a
permit application must not be denied if the statutory criteria are satisfied. The fact that the
issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the
application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).
10.In the case at hand, Petitioner meets all of the statutory and regulatory criteria
enacted by the South Carolina General Assembly for the issuance of an on-premises beer and
wine permit and a non-profit private club minibottle license, and there has not been a sufficient
evidentiary showing that the proposed location is unsuitable for Petitioner’s private club or that
the issuance of the permit and license to Petitioner will have an adverse impact on the
surrounding community. While the Chesterfield County Sheriff’s Office raised concerns about
the proximity of two churches to the proposed location, these churches are well beyond the
statutorily mandated distance protections of S.C. Code Ann. § 61-6-120 (Supp. 2004), which
prohibits establishments selling alcoholic liquors from locating within five hundred feet of a
church, and there has been no showing that the past operations of Petitioner’s lounge have had
an adverse impact upon those churches or their parishioners, or that future operations of
Petitioner’s lounge will likely have such an effect. Therefore, while this tribunal is respectful of
the concerns voiced by the Chesterfield County Sheriff’s Office, I find that Petitioner’s
application for a beer and wine permit and minibottle license 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 non-profit private club minibottle license for the
premises located at 4103 Chesterfield Highway in Cheraw, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 28, 2005
Columbia, South Carolina |