South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
April M. Jones, d/b/a Club Spot Lite vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
April M. Jones, d/b/a Club Spot Lite

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0345-CC

APPEARANCES:
For the Petitioner: Charles W. Whiten, Jr., Esquire

For the Respondent: No Appearance

For the Protestant: Lt. R.K. Fachting
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. 61-1-55, et seq. (Supp. 1995) and S. C. Code Ann. 1-23-310 et seq. (1986 and Supp. 1995) for a contested case hearing. The Petitioner, April M. Jones, seeks an on-premise beer and wine permit for Club Spot Lite. The Respondent's attorney made a Motion to be Excused which was granted by my Order dated August 23, 1996. A hearing was held on September 26, 1996, at the Administrative Law Judge Division.

The Permit requested by the Petitioner is approved with restrictions.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I make the following Findings of Fact by a preponderance of evidence:

    1. The Petitioner seeks an on-premise beer and wine permit for Club Spot Lite at 1421 West Market Street, Anderson, South Carolina.
    2. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.
    3. The qualifications set forth in S. C. Code Ann. 61-9-320 (Supp. 1995) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
    4. The Petitioner is of sufficient moral character to receive a beer and wine permit.
    5. The proposed location is not unreasonably close to any church, school or playground.
    6. The proposed location was previously a grocery store from approximately 1958 to 1991. During that time the location held a off-premise beer and wine permit from approximately 1982 to 1985. Since that time the location has been a bingo parlor and a lounge that operated unlawfully without a beer and wine permit.
    7. Though the Petitioner's club is in a commercial area, there is a large residential community behind the location. Furthermore, the location is in a high crime area of Anderson County. In fact, when the previous owner operated an unlicensed lounge at the location, the police responded to the following crimes:
      a) Assault and battery with intent to kill (February 11,1996)
      b) Pointing and presenting a firearm (March 24, 1996)
      c) Petty larceny (April 1, 1996) and
      d) Larceny (July 1, 1996)
    8. The Protestant testified that she cannot be sure whether the above criminal activity at the location was due to the operator of the location or the location itself. She further testified that adequate security may diminish the criminal activity at the location.
    9. A playground owned by Anderson County is located 127 feet from the location. However, at the time of the beer and wine permit application, the playground was not maintained and was apparently not used. Additionally, another location 1,056 feet away from the proposed location holds an on-premise beer and wine permit and a sale and consumption license. That location is beside the abandoned park.
    10. Since the proposed location is in a high crime area and in close proximity to a residential community, it is suitable for the sale of beer and wine on-premise only with the restrictions set forth below.

CONCLUSIONS OF LAW

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

    1. S.C. Code Ann.  1-23-600 (Supp. 1995) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
    2. S.C. Code Ann.  61-1-55 (Supp. 1995) grants to the Administrative Law Judge Division the powers, duties and responsibilities as hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.
    3. S.C. Code Ann.  61-9-320 (Supp. 1995) sets forth the requirements for the issuance of an on-premise beer and wine permit.
    4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
    5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
    6. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the 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).
    7. 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).
    8. In considering the suitability of a location, it is relevant to consider the previous history of the location and to decide whether the testimony opposing the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).
    9. Permits and licenses issued by the state for sale of liquor, beer and wine are not rights or property but are privileges granted in the exercise of the state's police power to be used and enjoyed only while the restrictions and conditions governing them are complied with. 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. S.C. Tax Comm'm, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions to permits, provides:
      Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.
    In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.
    10. The Petitioner meets the statutory requirements for holding a beer and wine permit at the proposed location with the following restrictions.

ORDER

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

ORDERED that the application for an on-premise beer and wine permit of April M. Jones for Club Spot Lite at 1421 West Market Street, Anderson, South Carolina be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to adhere to the stipulations that are set forth below:

    1. The Petitioner shall maintain proper lighting around her proposed location to discourage criminal activity. The Petitioner shall insure that the lights do not reflect or shine upon the local residences.
    2. The Petitioner shall contract with a bonded security company or an off-duty law enforcement officer, as permissible under the law, to employ no less than three uniform security guards to patrol the inside and the area immediately surrounding the proposed location. The security guards shall prohibit a public disturbance of any kind at the location. The guards shall also monitor the outside of the location to prohibit the consumption of any alcohol or the use of any drugs. Loitering in the parking lot area shall also be prohibited.
    3. The Petitioner shall not sell beer or wine after 1:00 a.m.

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

IT IS FURTHER ORDERED that the Department of Revenue issue an on-premise beer and wine permit upon the payment of the required fee and cost by the Petitioner.

AND IT IS SO ORDERED.

_________________________________
Ralph King Anderson, III
Administrative Law Judge

October 28, 1996
Columbia, South Carolina


 

 

 

 

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