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:
Buckshots Lounge vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Buckshots Lounge
4103 Chesterfield Highway, Cheraw, South Carolina

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0055-CC

APPEARANCES:
Patricia C. Rivers, Esquire
For Petitioner

Investigator Jim Thomas
For Protestant Chesterfield County Sheriff’s Office
 

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. Footnote

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


 

 

 

 

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