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SC Administrative Law Court Decisions

CAPTION:
John W. Douglas, d/b/a J.D.'s vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
John W. Douglas, d/b/a J.D.'s

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0180-CC

APPEARANCES:
William H. Johnson, Esquire
Attorney for the Petitioner

S.C. Department of Revenue and Taxation Not present at the hearing

Otto Williams
Protestant, pro se
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 1995) for a hearing pursuant to the application of John W. Douglas. Petitioner seeks an on-premises beer and wine permit (AI 107701) and a retail liquor license (AI 107702) for adjacent businesses located directly off of U.S. Highway 521, within the incorporated limits of Greeleyville, South Carolina. There are a number of protestants of record, of which, Otto Williams is the acting spokesperson.

After timely notice to the parties and the protestants, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina. The on-premises beer and wine permit is hereby denied and the Department shall grant the application for a retail liquor license. 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:

1. Petitioner seeks an on-premises beer and wine permit for a business located directly off of U.S. Highway 521, Greeleyville, South Carolina. The petitioner intends to operate this business as a social lounge with unrestricted hours.

2. Petitioner also seeks a retail liquor license for an adjacent business located directly off of U.S. Highway 521, Greeleyville, South Carolina.

3. Petitioner's application to the South Carolina Department of Revenue and Taxation ("Department") was made a part of the record without objection.

4. The two proposed locations are separate but adjacent businesses which occupy the same building in adjoining stores.

5. U.S. Highway 521 is a two lane road which runs through the center of Greeleyville, South Carolina.

6. The area surrounding the proposed locations is predominantly residential in nature.

7. The proposed locations are within the incorporated boundaries of Greeleyville, South Carolina.

8. The proposed locations are located approximately 200 feet from the residence of Otto Williams, and close to other neighboring residences, but, there are no churches, schools, or playgrounds within close proximity to the subject locations.

9. Petitioner is renting the proposed locations from Columbus Carter.

10. Petitioner has not had a beer and wine permit or other license revoked within two (2) years prior to the date of making application and petitioner has not had a license for the sale or manufacture of alcoholic liquors revoked within the five (5) year period preceding the filing of the application.

11. The State Law Enforcement Division ("SLED") completed a criminal background investigation of petitioner. The SLED report revealed no criminal violations. Petitioner has not engaged in acts or conduct that imply the absence of good moral character.

12. Petitioner will operate and manage the two (2) businesses.

13. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South Carolina, and has maintained his principal residence in the state for at least thirty (30) days prior to the date of making application for an on-premises beer and wine permit and the retail liquor license.

14. No one in petitioner's household currently holds a retail liquor license.

15. Notice of the application appeared in The News, a newspaper of general circulation in the area of the proposed location, for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.

16. The proposed locations have been previously licensed to sell beer and wine and liquor periodically from 1991 to October of 1995.

17. During petitioner's testimony, he conceded that the previous operation of the proposed locations resulted in illegal drug activities on the premises.

18. By way of letter, the Greeleyville Police Chief, Daniel A. McFaddin, indicated that his department has had to answer numerous incident calls at the proposed locations relating to loud music and drug dealings. (See Petitioner's Exhibit #1). In his letter, Chief McFaddin suggested ways for the petitioner to "correct the problems."

19. Protestant Otto Williams testified that as a result of the past on-premises consumption of beer and wine at the subject location, the tranquility of the neighborhood has been disturbed by the loud noise, profanity, loitering, and public urination.

Mr. Williams has lived at his present home since 1974. This property is approximately 200 feet from the proposed locations. As evidenced by his testimony and letter of protest dated March 15, 1996 (See file), Mr. Williams does not oppose the retail liquor establishment, as the nature of this business has set hours of operation and on-premises consumption is statutorily prohibited, thus, eliminating or lessening considerably the potential for loitering and any adverse consequences resulting therefrom. However, he does oppose the granting of an on-premises beer and wine permit because of the nature of the business. He testified that a social lounge promotes the assemblage of patrons and on-premises consumption, which will adversely impact the community as when the location was previously permitted with a beer and wine permit. Mr. Williams filed a protest in 1991 to the permitting of the proposed location, but he withdrew this protest after assurances were made by the applicant. CONCLUSIONS OF LAW AND DISCUSSION

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following: A. 1. S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this case.

2. S.C. Code Ann. § 61-9-320 (Supp. 1995) establishes the criteria for the issuance of a beer and wine permit.

3. S.C. Code Ann. §§ 61-3-420, et seq. (Supp. 1995) establishes the criteria for the issuance of a retail liquor license.

4. 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. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5. 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); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).

7. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246. 317 S.E.2d 476 (Ct. App. 1984); See Also Moore v. S.C. ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992).

8. "A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 (1981).

9. "The proximity of a location to a church, school, or residence is a proper ground by itself, on which the [trier of fact] may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location." Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); aff'd, Moore v. S.C. ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992).

B. Since the protestant is not protesting the petitioner's retail liquor application, this tribunal will not reach the merits of the suitability of the proposed location as to that application. Therefore, the primary issues before me are the petitioner's eligibility to hold a beer and wine permit and retail liquor license; (2) the suitability of the proposed location for the beer and wine permit; and, (3) the nature of the proposed business activity.

While it is unusual that a protestant would "favor" a retail liquor establishment over an establishment holding a beer and wine permit, the rationale in this case is clear. It is evident that the nature of the business activity of the social lounge, which would hold the on-premises beer and wine permit, would have an adverse impact on the community as it has in the past. The testimony of the petitioner, the protestant, and the written statements of the chief of police confirm the nefarious activities which resulted from the prior operation of the social lounge. Further, this tribunal is not persuaded that remedial actions undertaken by the petitioner will have a preclusive effect on the illicit activities resulting from previous operations of the social lounge.

Additionally, the mere fact that the social lounge is in such close proximity to the protestant's residence and other neighboring houses is a sufficient basis upon which to deny the permit. Byers, supra. Because this location was previously permitted does not mean that it is to be forever so declared a suitable location. Any argument to the contrary lacks logical foundation and is fallacious. Criminal activity can render a previously suitable location unsuitable. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed location. Ronald F. Byers, supra. Further, S.C. Code Ann. § 61-9-320(6) does not limit in any fashion the scope of a suitability determination.

This tribunal does not question petitioner's sincerity in eliminating criminal activity at the proposed location. Even if this tribunal were convinced that petitioner could eliminate the criminal activity, which it is not, there are inherent consequences from the operation of a social club which are not conducive to the harmonious coexistence of a residential community which is in such close proximity to the social club. The members of this community are entitled to be free of the kinds of criminal activity, noise disturbances, or other inherent consequences associated with the operation of a social club.

ORDER

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

ORDERED that the Department grant John W. Douglas, d/b/a J.D. 's, a retail liquor license for a location situated directly off of U.S. Highway 521, Greeleyville, South Carolina upon payment of the required fee(s) and cost(s) by the petitioner.

IT IS FURTHER ORDERED that the petitioner's application for an on-premises beer and wine permit for a location situated directly off U.S. Highway 521, Greeleyville, South Carolina is hereby denied.

AND IT IS SO ORDERED.

____________________________________

JOHN D. GEATHERS

Administrative Law Judge

Edgar A. Brown Building

1205 Pendleton Street

Columbia, South Carolina 29201

July 16, 1996


 

 

 

 

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