SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (“Division”) pursuant to S.C. Code Ann. §§ 61-2-260, 1-23-310, and 1-23-600 (Supp. 2002) for a contested case hearing. Peebles Development Group, LLC, d/b/a Good Nights, 509 Dicey Ford Road, Camden, South Carolina, (“Applicant/Petitioner”) seeks an on-premises beer and wine permit and a sale and consumption (minibottle) license.

Creighton Miles, Curtis Miles, Ron Ward, and Nancy Ward (“Protestants”), each filed a protest to the application with the South Carolina Department of Revenue (“Department”), citing concerns about parking and the close proximity of the location to other businesses and a residence. Because of the protest, the hearing was required. The Department filed a Motion to be Excused setting forth that but for the protest, this permit and license would have been issued. However, this motion was denied.

Applicant has a temporary 120-day permit and license, issued during the pendency of this application. Because the temporary permit and license both expire on August 28, 2003, the undersigned granted Applicant’s request for an expedited hearing. The hearing was held on August 19, 2003, at the offices of the Division at 1205 Pendleton Street, Columbia, South Carolina. All parties and Protestants appeared at the hearing. At the beginning of the hearing, the undersigned granted Creighton Miles’ Motion to Intervene. Evidence was then introduced and testimony was given. After carefully weighing all the evidence, this tribunal finds that the on-premises beer and wine permit and minibottle license should be granted with restrictions.

FINDINGS OF FACT

Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and taking into consideration the burden of persuasion by the Petitioner and the Protestant, I make the following findings of fact by a preponderance of the evidence:

1. The Division has personal and subject matter jurisdiction.

2. Notice of the time, date, place, and nature of the hearing was given to all parties and

Protestants.

3. The Petitioner, Peebles Development Group, LLC, d/b/a Good Nights, applied for an on-premises beer and wine permit and sale and consumption (minibottle) license for the premises located at 509 Dicey Ford Road, Camden, South Carolina (“location”), which is located inside the Camden city limits approximately two miles from downtown Camden.

4. Peebles Development Group, LLC is owned by Steven Allen Peebles and William James Peebles. The permit is to be issued in the name of Steven Peebles, the primary owner. Steven Peebles, father of William Peebles, lives in Cassett, South Carolina, and is the plant manager of Conbraco Industries.

5. Steven Peebles is over the age of twenty-one. He has been a legal resident of the state of South Carolina for the past forty-three years, and has maintained his principal place of abode in the State of South Carolina for the same length of time. Steven Peebles is of good moral character and has never been convicted of a crime.6. Notice of this application appeared at least once a week for three consecutive

weeks in the Chronicle-Independent, a newspaper of general circulation in the local area where the Petitioner would operate. Notice of the application was also given by displaying a sign for a minimum of fifteen (15) days at the location.

7. The location is a restaurant primarily engaged in the preparation and serving of meals. It currently operates from 3:00 p.m. to 12:00 a.m. Monday through Wednesday, 3:00 p.m. to 2:00 a.m. Thursday and Friday, and on Saturday from 1:00 p.m. to 12:00 a.m. Although meals such as steak and seafood are not served after 10:00 p.m., appetizers and sandwiches may be ordered up until closing time.

8. Applicant has never held a beer and wine permit nor a minibottle license.

9. There are no churches, schools, or playgrounds within three hundred feet of the proposed location.

10. Previously, a restaurant and bar called “The Villepigue Tavern” operated at the location. The Department issued to The Villepigue Tavern a beer and wine permit and a sale and consumption (minibottle) license. Because The Villepigue Tavern held a permit and license, Applicant was issued a temporary permit and license pending this application hearing, both of which expire on August 28, 2003.

11. Protestants question the suitability of the location, citing parking issues and concerns for their personal safety.

12. Parking directly in front of the location is limited. Currently, some businesses close to the location have given written permission for either employees or patrons of the location to utilize their parking spaces if necessary. In addition, patrons may park along the side of Dicey Ford Road. Protestants who own other businesses close to the location have complained of patrons continually parking in their lots and blocking their entrances. “No parking” signs that have been posted in these lots have been ignored. Although Applicant has made attempts to control parking problems, the only method proved to be effective so far is to have an individual monitor the parking lot and direct patrons to designated parking areas. Applicant is currently in the process of procuring a large sign to post at the door detailing permissible parking areas.

13. Creighton Miles, the owner and operator of “Box, Paper, Scissors,” a business across Dicey Ford Road from the location, expressed concerns for her personal safety in addition to problems with patrons of the location parking in her lot without permission. Mrs. Miles testified that she has had vehicles owned by patrons of the Applicant towed from her lot on several occasions. On one occasion, Mrs. Miles was confronted by an individual who was a customer of the Applicant who had his vehicle towed from her lot. Although no physical altercation occurred, Mrs. Miles expressed concern for her safety. An incident report was written up, but no arrest was made. Mrs. Miles also testified to having problems with patrons using profane language and urinating in the shrubbery outside of a window of her business late one night.

14. Protestant Ron Ward operates an insurance business close to the location. He lives in a residence approximately 500 feet behind the location. Mr. Ward’s residence, however, cannot be seen from the location. Mr. Ward also testified as to problems with parking directly in front of his business, but not at his residence.

15. Law enforcement has not expressed any concerns about the operation of the business, and did not protest this application either before or at the hearing. Further, law enforcement did not experience any problems with the restaurant that previously operated at this location. There have been two arrests at the location since it opened on May 8, 2003, both of which were for disorderly conduct and occurred in the parking lot of the location. In addition, on May 18, 2003, three employees were charged with violations for possession of beer or liquor during restricted hours; however, these incidents occurred at approximately 12:15 a.m. on a Sunday morning when State Law Enforcement Division agents came into the location while the employees were cleaning up.

16. At closing time each night, an officer from the Camden Police Department is requested to monitor and assist in clearing out the parking lot. Lieutenant Michael Stone from the Camden Police Department testified that the Police Department encourages businesses in the area to call and request an officer to come to the location and walk through at closing. In addition, William Peebles visits with Camden Police Chief Floyd every one to two weeks to see if there are any law enforcement concerns.

17. William Peebles will manage the daily operations of the location. He has one conviction on his record for “disorderly conduct,” which occurred when he ran onto the field at a Clemson University football game. A fine was paid and no jail time was served as a result of this incident.

18. The proposed location is suitable for the sale of minibottles and beer and wine on premises with the restrictions set forth below.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

1. S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

3. 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 alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4. S.C. Code Ann. § 61-4-520 (Supp. 2002), which sets forth the requirements for the issuance of a beer and wine permit, provides:

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.

(2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

(3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

(4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

(5) The applicant is twenty-one years of age or older.

(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, S.C.hools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.

(8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. The notice must:(a) be in the legal notices section of the newspaper or an equivalent section if the newspaper has no legal notices section;
(b) be in large type, covering a space of one column wide and at least two inches deep;

and
(c) state the type license applied for and the exact location of the proposed business.

An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

(9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches high and eight and one-half inches wide;

(e) be posted and removed by an agent of the division.

5. S.C. Code Ann. § 61-6-1820 (Supp. 2002), which sets forth the requirements for the issuance of a sale and consumption (“minibottle”) license, provides in part:

The department may issue a license under subarticle 1 of this article upon finding:

(1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.

(2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace and good order in its community, and its principals are of good moral character.

(3) As to business establishments or locations established after November 7, 1962, Section 61-6-120 has been complied with.

(4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. The notice must:

(a) be in the legal notices section of the newspaper or an equivalent section if the newspaper has no legal notices section;
(b) be in large type, covering a space of one column wide and at least two inches deep; and
(c) state the type license applied for and the exact location of the proposed business.

An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.

(5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of license sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches high and eight and one-half inches wide;

(e) be posted and removed by an agent of the division.

(6) The applicant is twenty-one years of age or older.

(7) The applicant is a legal resident of the United States, has been a resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in this State for at least thirty days before the date of application.

(8) The applicant has not been convicted of a felony within ten years of the date of application.

6. 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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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 Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

7.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 a proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

8. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities, and conclusions or whether the case is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).9.Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not 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).

10. In South Carolina, there is no single criterion by which to determine whether or not one is possessed of good moral character so as to satisfy the alcoholic beverage licensing laws. See 1969 Op. S.C. Atty. Gen. No. 2709. Although William Peebles, who is part owner of Peebles Development Group, LLC, has a conviction for “disorderly conduct” on his record, the court finds that this charge does not rise to the level of a character defect.

11. Permits and licenses issued by the State of South Carolina for the sale of liquor, beer, and wine are not property rights, but are privileges granted in the exercise of the police power of this state to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. The Administrative Law Judge Division, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

12. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (effective June 27, 2003) authorizing the imposition of restrictions on permits, provides:

Any written stipulation and/or agreement which is voluntarily entered into by an applicant for a permit or license between the applicant and the Department, if accepted by the Department, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the permit or license and shall have the same effect as any and all laws and any and all other regulations pertaining to the permit or license.

Knowing violation of the terms of the stipulation or agreement shall constitute sufficient grounds to revoke said license.

13. With the restrictions set forth below, Applicant meets the statutory requirements for holding a minibottle license and an on-premises beer and wine permit at the proposed location. It shall be Applicant’s responsibility to remedy all parking concerns by fully complying with all parking restrictions as set forth below. Further, it shall be the responsibility of Applicant to diffuse and prevent inflamed relationships between its patrons and adjoining business owners who do not wish for Applicant’s patrons to park at their locations. This responsibility includes continually advising its patrons of locations where they may park while patronizing their business and informing patrons that their vehicles may be towed as a consequence of parking in an unauthorized area. By granting this application, Applicant assumes this duty and responsibility to work in a positive way to maintain relationships with adjoining business owners. Applicant has an affirmative duty to speak well to patrons of any adjoining businesses that do not want Applicant’s patrons to park in their lots. Additionally, inflammatory remarks by patrons who have their cars removed from unauthorized parking areas reflects upon the failure of Applicant to abide with the terms and restrictions contained herein, which are a part of and a condition to this license and permit.

ORDER

IT IS HEREBY ORDERED that the application for an on-premises beer and wine permit and sale and consumption license for the location known as “Good Nights,” which is located at 509 Dicey Ford Road, Camden, South Carolina, is GRANTED in the name of Steven Allen Peebles subject to the restrictions below:

RESTRICTIONS

1.During all hours of operation, Applicant must provide sufficient personnel to oversee its customer parking on the public roadways adjacent to its location as well as any parking areas at businesses with which it has written agreements authorizing parking of its employees or patrons. This oversight shall specifically include the employment of licensed security guards trained in handling parking and traffic problems. Further, Applicant must ensure that none of its patrons park on the properties of any businesses within its general locale which do not provide such written authorization.

2.Within thirty (30) days of the date of this Order, Applicant must provide the Department with all written agreements procured from all businesses and/or property owners who have authorized Applicant’s patrons or employees to utilize their parking areas.

3.Applicant must post a sign at least 4 ft. by 4 ft. outside the entrance to the location detailing all permissible and non-permissible parking areas. Additionally, Applicant must conspicuously post signs outside all entrances to the location and inside the location which draw patrons attention to the potential of having vehicles towed if vehicles are parked at an unauthorized location.

4.Applicant shall cooperate with local police, the Department, and agents of the State Law Enforcement Division to ensure full compliance with these parking provisions.

IT IS FURTHER ORDERED that the permit and license shall only be issued by the Department upon Steven Allen Peebles signing a written statement to be filed with the Department to adhere to the restrictions as set forth in this order.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the permit and license and may result in a fine, suspension, or revocation of the permit and license.

AND IT IS SO ORDERED.

____________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

August 26, 2003

Columbia, South Carolina