SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2001) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 2001) upon filing of applications by Petitioner, Doretha White's Place, d/b/a Doretha White's Place ("Petitioner"), for renewal of an on-premise beer and wine permit and a sale and consumption ("mini-bottle") license for a location at 4320 Queen Chapel Road, Dalzell, South Carolina. Upon receipt of a written protest to the application, the South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing. After timely notice to the parties and Protestant, a contested case hearing was held on May 13, 2002, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestant was Tommy R. Mims, Sheriff of Sumter County. Jerome White is the owner/operator of Doretha White's Place ("the Club"). White testified in support of the applications. Upon review of the relevant and probative evidence and applicable law, and subject to Petitioner's stipulation to the conditions contained herein, the applications for renewal of an on-premise beer and wine permit and a sale and consumption ("mini-bottle") license are granted

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of the evidence:

• Notice of the time, date and place of the hearing was given to the Petitioner, Protestant, and Department.
• Jerome White, on behalf of the Club, seeks renewal of an on-premise beer and wine permit and a sale and consumption ("mini-bottle") license for the proposed location of 4320 Queen Chapel Road, in Dalzell, South Carolina.
• The Department moved to be excused from appearing at the hearing on the ground that it would have granted the permit and license but for the protest of Sheriff Tommy R. Mims, who called into question the suitability of the location. ⁽¹⁾ Said motion was granted.
• Doretha White's Place is a private club that operates Thursday through Sunday, opening for business at 4:30 p.m. The Club is located on a rural highway in a light residential area approximately one mile from a school and a church.
• No citizens residing in the area of the Club, no parishioners of the local churches, nor any officials from the school district appeared in protest to the renewal applications.
• Tommy R. Mims, who has served Sumter County as Sheriff since 1989, testified in opposition to the issuance of the license and permit. Mims testified that, over the years, his office has responded to numerous calls to the location, including a call regarding an assault and battery which ultimately proved deadly. However, since early 2000, the Sheriff's Office has responded to only four calls at the location. Mims has spoken on numerous occasions with White and his mother, former owner and prior licensee Doretha White, about improving the safety of the location. At Mims' suggestion, lighting has been added to the location, as well as a "No Loitering"sign, which is posted on the front door of the Club. Also at Mims' suggestion, several security guards now patrol both the interior and the exterior of the club.
• Jerome White testified that the license and permit have been in his name since 1997. White admitted that, prior to 2000, the Sheriff's Office responded to many calls at the club. However, White stated that many of those calls originated from pranksters calling from a payphone located in front of the location. Once the payphone was removed, White testified, there were far fewer calls to the Sheriff's Office. In addition, White testified that he has taken several measures to increase security and control his crowds. He currently has four licensed, armed security guards on the premises during the club's hours of operation, one guard remaining at the door while the other three patrol inside and outside of the club. To ensure adequate lighting, White has installed thirteen light poles on the premises. Patrons are not permitted to remain in their vehicles once on the premises; they must get out of their cars or leave. Finally, a large "No Loitering" sign is posted on the front door. White will continue to provide these security measures.
• There is no evidence that the location is presently unsuitable.

CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude as a matter of law, the following:

• S.C. Code Ann. § 1-23-600 (Supp. 2001) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
• S.C. Code Ann. § 61-4-520 (Supp. 2001), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

... .

6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches.

... .

S.C. Code Ann. § 61-4-520 (6), (7) (Supp. 2001).

• A sale and consumption ("mini-bottle") license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 2001) if:

1) the applicant is not a suitable person to be licensed;

2) the store or place of business to be occupied by the applicant is not a suitable place; or

3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated municipality or other community.

S.C. Code Ann. § 61-6-910 (2001).

There is no evidence whatsoever that Petitioner does not meet the statutory requirements regarding his personal character. Therefore, the only issue before this tribunal is whether the location is a proper one.

• Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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.2d 335 (1985). 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 upon which the location may be found to be unsuitable and a permit denied. Byers v. S. C. 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).

• 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).

• Permits issued by the State for the sale of beer and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
• The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered. A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the permit pursuant to S.C. Code Ann. §§ 61-4-580, 61-6-100, and 61-6-1830 (Supp. 2001).
• Therefore, I conclude that it meets all of the statutory requirements for holding a mini-bottle license, and an on-premises beer and wine permit at the proposed location, subject to Petitioner's written stipulation to and continued compliance with the following conditions:

• Petitioner will maintain adequate lighting;
• Petitioner will maintain a "No Loitering" sign. Petitioner and its employees will prevent patrons from loitering on the premises; and
• Petitioner will ensure that a minimum of four licensed security guards provide security both inside and outside of the premises during hours of operation.

ORDER

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

IT IS HEREBY ORDERED that the Petitioner's applications for renewal of the sale and consumption ("mini-bottle") license and the on-premises beer and wine permit for its location at 4320 Queen Chapel Road, Dalzell, South Carolina, is granted subject to Petitioner's payment of all fees and statutory requirements, and upon its written agreement to the conditions appearing herein.

AND IT IS SO ORDERED.

________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

May 14, 2002

Columbia, South Carolina

1. No challenge was made regarding the suitability of the applicant.