ORDERS:
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-4-520 (Supp.
2001) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit for the location at 20 Long
Branch Road, Georgetown, South Carolina. This matter is presently before the Division because of a protest by concerned
citizens concerning the suitability of the location. The Respondent moved to be excused since but for the protests they
would have issued the permit and license. This motion was denied. After notice to all parties and Protestants, a hearing
was conducted on August 15, 2002, at the Division in Columbia, South Carolina. At the hearing, the parties and Protestants
listed above were present. Mr. Albert Darby, an Intervenor, was not present, but was represented by counsel. Mr. Sammy
Grayson, who had filed a protest, notified the Court that he would not be present. His protest is deemed abandoned.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their
credibility, I make the following Findings of Fact by a preponderance of the evidence:
- The Petitioner seeks an on-premises beer and wine permit for the location known
as The Long Branch, located at 20 Long Branch Road, Georgetown, South Carolina.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements. The Respondent had concerns regarding the necessity of the
application. A hearing concerning this location was previously held on May 20, 1999 at the Division before Judge Ralph
King Anderson, III, in case number 99-ALJ-17-0095-CC. Judge Anderson's order, filed June 14, 1989, approved the
Petitioner's application for a beer and wine permit with restrictions. The Petitioner filed a Motion to Reconsider on June
21, 1999, concerning the limitations on the hours of operation of the establishment. Judge Anderson denied the motion on
August 12, 1999. The Respondent states that two permits should not be issued for the same location, and since the
Petitioner currently has a license with restrictions, that the doctrine of res judicata should apply.
- The location is in an area of Georgetown that is a mixture of residential and
commercial establishments. The Petitioner's application seeks to extend his operating hours to allow him to sell beer and
wine from 12:00 PM to 5:00 AM Monday through Friday and 12:00 PM to 12:00 AM on Saturday.
4. The Petitioner had a violation at this location in January 2000 for possession of
liquor at an unlicensed facility and paid a $200.00 fine.
5. Members of the North Santee Christian Mens Breakfast Association and others
near the location oppose the permit. The Association is trying to prevent what they refer to as "juke joints" in the area, and
they state that they take action to oppose these applications when people complain. There have been numerous complaints
over the years concerning the noise coming from the club. In addition, the Protestants and Intervenors do not feel that the
Petitioner has obeyed Judge Anderson's order concerning the restrictions placed on Petitioner's operation.
6. The applicant appears to be of good moral character. The State Law Enforcement
Division's criminal background investigation revealed no criminal violations.
7. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained his principal residence in the State for at least thirty days prior to the
application.
8. Notice of the application appeared in The Georgetown Times, a newspaper
of general circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted
at the proposed location for fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. §
61-2-260 (Supp. 2001).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops,
Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d
308 (1981) (sale and consumption license).
4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the
relevance and weight of any testimony offered.
5. 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 on the community
within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the
location may be considered. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the
Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). There is ample evidence to suggest that the Intervenors and
Protestants have complained to the local law enforcement about the noise at the Petitioner's establishment, as well as his
apparent disregard of the restrictions on the hours he his allowed to sell beer or wine.
6. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to
determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts.
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
7. 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 alone to deny
the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. S.C. Code Ann. § 61-4-525 (Supp. 2001) provides that a person residing in the county in which a beer and wine permit is
requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if
he files a written protest.
9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the
police power of the State, and are to be used and enjoyed only so long as the holder complies with the restrictins and
conditions governing them. The Administrative Law Judge, 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. South Carolina Tax Comm'n, 201
S.C. 49, 26 S.E.2d 22 (1943).
10. In addition, 23 SC Code Ann. Reg. 7-88 (1976) concerning the acceptance of
restrictions on permits provides:
Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit . . .
will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and
wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the
effective administration of beer and wine permits and permittees.
In the event that evidence is presented . . . that any part of the stipulation or agreement is or has been knowingly broken by
the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer
and wine permit.
I take Judicial Notice of Judge Anderson's Order of June 14, 1999, in Case Number 99-ALJ-17-0095-CC, where he found
that the Petitioner voluntarily proposed restricting the hours of operation of his establishment.
12. After considering all the relevant factors, pleadings, evidence and witnesses before me, I find that the location is
suitable for the on-premises sale of beer and wine. There is, however, an existing license in effect at this location with the
restrictions in place as established by Judge Anderson in his Order of June 14, 1999. I find nothing in the record or
presented to me to indicate that these restrictions should be or could be lifted in this action. Judge Anderson viewed the
evidence and witnesses before him and passed on their credibility. He accepted the Petitioner's restrictions on operation
and made them part of the Order, limiting the Petitioner's hours of operation to 8:00 PM to 12:00 AM Thursday, Friday
and Saturday.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue DENY the Petitioner's application for an on-premises beer
and wine permit. The restrictions on operation as set forth by Judge Anderson shall remain in effect.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 2, 2003
Columbia, South Carolina |