ORDERS:
ORDER AND DECISION
The sole issue presented in this contested case hearing is
whether there has been a material change in the location for which
applicant applied for an on-premises beer and wine permit for the
Department of Revenue and Taxation (Department) to proceed in
reviewing the application.
FINDINGS OF FACT
The applicant, Ju Shin Park applied for an on-premises beer
and wine permit for an establishment he rents known as "Charlie's"
at 2708 Rosewood Drive in Columbia. The application was dated
October 6, 1993 and upon receipt, the Department conducted an
investigation. With the exception of the map drawn by the S.C. Law
Enforcement agent, the Department file was incorporated into the
record of this case with a copy substituted for the original.
On November 16, 1993, the Department informed the applicant
that the Alcoholic Beverage Control Commission (Commission)
previously denied an application for a permit and license at this
location upon finding that the location was unsuitable for the sale
of alcoholic beverages. Applicant was informed that no further
consideration would be given to his application unless "evidence of
substantial material change in the location" was provided. This
evidence, the Department stated, "may include physical changes in
the area, and should include the withdrawal of the previous
protests."
Applicant submitted a letter to the Department indicating what
he considered to be changes in the location, which were a list of
businesses in the immediate vicinity issued licenses for on-premises consumption of beer, wine, or alcoholic liquors after the
denial of the previous application for Charlie's and a statement
that one of the protestants in the previous application had sold
his property adjacent to Charlie's. On January 21, 1994, the
Department notified applicant that his application was denied and
the procedure for requesting a hearing on the issue of "material
change". Applicant thereafter requested a hearing.
The Commission denied an application to Mr. Patrick Huggins
for the same location in March 1992. At that time the protestants
were Rev. Frank Keels, pastor of Rosewood Baptist Church; Michael
Dickson, owner of the Montessori School; and Joe Drawdy, an
adjacent property owner.
A tax map of the area, introduced into evidence, shows the
locations where alcoholic beverage permits are currently in effect
and those which were issued since the Commission's ruling in 1992.
Licenses have been issued or are currently in effect at Rockaway
Athletic Club, Nikki D's, Pizza Man, and Party Town liquor store.
Of the three locations with on premises licenses only Rockaway
Athletic Club had a license before March 1992.
The Pizza Man is located on the opposite side of Rosewood
Drive from Charlie's on the corner of Rosewood and Woodrow Street
approximately one block closer to the Montessori School. Nikki D's
is located on the same side of Rosewood Drive as Charlie's one
block closer to the Rosewood Baptist Church. Rockaway Athletic
Club is directly across the street from Charlie's on Rosewood
Drive.
Nikki D's is no longer in business. The Montessori School
withdrew its protest against the Pizza Man. Basil Garzia with the
Rosewood Market who appeared at the hearing to protest this
application did not protest the application of locations on
Rosewood Drive closer to the Rosewood Market.
This area of Rosewood Drive is a mix of residential and
commercial establishments. The changes in the area have been
positive in nature with the recent regulation on the video poker
industry which caused a significant reduction in the number of
video poker businesses on Rosewood Drive. Only one video poker
location exists in the immediate area of Charlie's. There has been
an increase in the number of neighborhood oriented businesses.
Although the owner of the Montessori school testified that
patrons of Charlie's in the past caused damage to and litter on the
school property, I find no credible evidence to show that the
problems previously experienced in the area have continued and no
evidence was presented to show problems occurring in the last two
years.
A hand drawn map of the area and the location of places that
are applying for a license from the Department were introduced by
the school to establish that the area is saturated. I find this
evidence to be speculative since the businesses have not been
granted a license and the Department is not required to issue a
license to these locations. Less weight is accorded to this
exhibit on that issue.
Other exhibits introduced into evidence were documents showing
the issuance of a license to Nikki D's and Pizza Man; and pictures
taken by a member of the church showing the view from the church
toward Charlie's, the view from Charlie's to the church, and the
exterior of Charlie's and the parking lot.
CONCLUSIONS OF LAW
The Administrative Law Judge Division is vested with the
powers, duties and responsibilities exercised by the former
Alcoholic Beverage Control Commission (Commission) and hearing
officers pursuant to Chapter 23 to Title 1. S.C. Code of Laws §
61-1-55 (Cum. Supp. 1993). Commission Regulation 7-96 states:
The Alcoholic Beverage Control
Commission will not hear an application for a
retail beer and wine permit or an application
for a retail off-premise beer permit when the
location involved has been declared by the
Alcoholic Beverage Control Commission to be
improper unless and until the applicant can
affirmatively show that some material change
with respect to the location has occurred, or
unless otherwise ordered by the Alcoholic
Beverage Control Commission.
Pursuant to the Government Restructuring Act of 1993 (Act 181 of
1993), all regulations promulgated by the Commission effective on
the date of the act remain in force until modified or rescinded by
the Department or the State Law Enforcement Division. 1993 Act No.
181, § 1604.
It is the fact finder's duty to judge the demeanor and
credibility of the witnesses and to determine the relevance and
weight to be accorded to the testimony and evidence offered.
The regulation relied on by the Department does not assist
this court in making a ruling. It does not provide any factors the
Department may consider in determining what is a "material change
with respect to the location". Unfortunately, there has been no
judicial interpretation of this regulation to guide the court in
this matter.
The Department in its letter to applicant does mention some of
the factors it would consider but upon review of the Department's
file made a part of the record in this case, a memorandum reveals
that those factors were not the only ones considered. In an
internal memorandum dated January 14, 1994, a representative of the
Department wrote, "The real issue does not appear to be the number
of beer, wine and liquor licenses in the area but rather the
disruptive influence this location previously had on the
neighborhood and the type clientele it attracted." No evidence
exists in the record to indicate that the applicant had knowledge
that the Department would consider factors other than the changes
in the physical location and whether any protests were withdrawn.
To allow the Department to base its decision on factors other than
those expressed by it in its letter without notice to the applicant
raises questions of fairness and prejudices the right of applicant
to adequately present his case.
The evidence in the record demonstrates that additional
licenses have been issued in this neighborhood, some of which have
been protested and some of which have not. An adjacent property
owner who previously opposed the issuance of the license is not
currently protesting the issuance of a license to Charlie's. There
is a reduction of the number of video poker shops in the area that
may have contributed to some of the undesirable activity. There is
no evidence of continued criminal activity in the past two years.
The applicant has established by a preponderance of the
evidence a "substantial material change in the location" and is
entitled to consideration of the merits of his application. It is
therefore,
ORDERED that the Department proceed with the processing of the
application based upon the applicant's merits.
__________________________
ALISON RENEE LEE
Administrative Law Judge
Columbia, South Carolina
May __, 1994. |