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:
Creative Concessions, LLC, d/b/a Creative Concessions vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Creative Concessions, LLC, d/b/a Creative Concessions
81 W. Park Dr., Spartanburg, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0276-CC

APPEARANCES:
Frederick R. "Pete" Bock, President of Creative Concessions, LLC for Petitioner

Dana R. Krajack, Esquire for Respondent

Protestants: Belva Howard, Jesse Campbell
 

ORDERS:

FINAL ORDER

STATEMENT OF THE CASE

This matter is before me on an expedited basis at the request of the Petitioner with the consent of the Respondent. Although this file was received by the ALJD on July 2, 2003 and assigned to me on July 8, the hearing was expedited because the baseball season during which the Petitioner can serve concessions begins in early June and ends in early August. Thus, the Petitioner would have no remedy if the case were processed on the Court’s normal schedule.

This case comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-4-520 (Supp. 2002) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit for the location at 81 W. Park Dr., Spartanburg, 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 it would have issued the permit. This motion was denied. After notice to all parties and Protestants, an expedited hearing was held on July 17, 2003, at the Division in Columbia, South Carolina. At the hearing, the parties and Protestants listed above were present.

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:

1. The Petitioner seeks an on-premises beer and wine permit for the location at 81 W.

Park Dr., Spartanburg, South Carolina. This location is a baseball field located in Duncan Park Stadium, a park in the city of Spartanburg.

2. The Respondent, South Carolina Department of Revenue (Respondent or the

Department), determined that the location and the Petitioner met all statutory requirements. The Applicant is a Maryland limited liability corporation which is registered with the South Carolina Secretary of State’s office.

3.The Protestants were concerned that the location was unsuitable due to the proposed

location’s presence in a city park. They expressed concern about children and young adults in the park and at the baseball games being exposed to alcohol. In addition, the Protestants expressed concerns regarding drinking and driving in the area.

4. The principals appear to be of good moral character. The State Law Enforcement

Division’s criminal background investigation revealed no criminal violations either in South Carolina, or in their home states.

5. The registered agent 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.

6. Notice of the application appeared in The Spartanburg Herald-Journal, 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. 2002).

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). The determination of suitability of a 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. 335 (1985).

4. Any evidence adverse to the location may be considered. The proximity of a

location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). In this case, no evidence was offered showing that the location is not suitable or was not a proper location, despite the Protestants’ claims to the contrary.

5. The City of Spartanburg did not protest this permit, not did the City or County Law Enforcement agencies. There was no evidence of law enforcement problems in the area, including any problems with drinking and driving. In addition, Mr. Bock testified that the Petitioner has had no alcohol violations at the other nine ball parks which the Petitioner has served alcohol. The Petitioner has been selling beer at baseball games for seven years with no violations.

6.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. Protestant Mrs. Howard, who tragically lost her husband in a drunken driving accident in 2002, was very credible in her opposition to the permit. She was particularly concerned that intoxicated parents leaving the ballpark would endanger their children by driving while intoxicated. She also expressed concern that people would buy beer and allow underage or intoxicated people to drink it.

In addition, Mr. Campbell testified that he had worked with the American Legion baseball program for many years, and was impressed with the opportunities for and the lessons that program taught young men. Although he was glad that the Coastal Plain League provided similar opportunities for young men who were too old to play Legion baseball, he did not feel that alcohol was necessary for the fans at the stadium, and that its presence sent the wrong message to the youth. Although both of these individuals were very passionate and articulate in their opposition, the fact remains that the statute that this Court must consider speaks in terms of the suitability of the location and the applicant only. There was no specific testimony or evidence presented by anyone that the location at 81 West Park Drive, or the applicant Creative Concessions, LLC, was unsuitable.

7.S.C. Code Ann. § 61-4-520 (Supp. 2002), states that, “no permit authorizing the

sale of beer or wine may be issued unless: (1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises are of good moral character.”

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 alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

9.S.C. Code Ann. § 61-4-525 (Supp. 2002) 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 timely written protest.

10.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 restrictions 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).

11.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.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the South Carolina Department of Revenue GRANT the Petitioner’s application for an on-premises beer and wine permit.

AND IT IS SO ORDERED.

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge


January 13, 2004

Columbia, South Carolina


 

 

 

 

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