SC Administrative Law Court Decisions

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, Anthony L. Green, seeks a renewal for an on-premise beer and wine permit and sale and consumption license for Park Avenue. The Respondent's attorney made a Motion to be Excused which was granted by my Order dated August 30, 1996. A hearing was held on October 16, 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 obtained an on-premise beer and wine permit and a sale and consumption license for Park Avenue at 2706 N. Main Street, Columbia, South Carolina in June or July of 1995. He now seeks to renew the permit and license.
2. Notice of the time, date, place and subject matter of the hearing was given to all parties involved.
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 Respondent's object to the renewal of the Petitioner's permit for the following reasons:
a) The establishment is not suitable for a residential neighborhood.
b) The Petitioner's customers make excessive noise in the vacant lot beside the location.
c) The Petitioner's sound system produces excessive noise, especially given the nature of the area.
d) The traffic and parking at the location creates difficulties for the local residents.
7. Park Avenue is located on Main Street in a commercial area of Columbia. The establishment is open only on Friday and Saturday from 10:00 a.m. to 4:00 a.m.
8. The location has been permitted or licensed at least 12 of the last 13 years. However, the location currently generates more noise and traffic than the previous clubs. The elevated noise is generated by the increased bass from the updated sound system. Furthermore, the additional patronage by customers at this location has resulted in difficulties in handling the overflow parking. To accommodate the additional parking needed for his customers, the Petitioner provides parking in an empty parking lot across Main Street from the location and in a vacant lot behind the location enumerated as lots 3, 4 and 5 on Respondent's Exhibit 1. Individuals who park in the vacant lot frequently talk and play their music loudly.
9. On August 1, 1995, one month after the Petitioner's business opened, the Sottongs moved into their home beside the location. The Sottongs believed that the location was a "neighborhood" type bar based solely on what their real estate agent told them. Neither the Sottongs or Mr. Geiger protested the Petitioner's original application.
10. As a result of the complaints by the Sottongs and the neighborhood association the Petitioner made the following accommodations:
a) Erected a fence and chain barricade between the Sottongs home and his location as reflected in Petitioner's Exhibit 5,
b) Posted a security guard outside of the location to supervise traffic and control noise
c) Either the Petitioner and/or his employees disposed of trash around his location after closing
d) Moved the security light and trash receptacle to eliminate the nuisance created by rats in the area.
11. The person that previously held a permit and license at the Petitioner's location had the following restrictions placed upon his permit and license by the ABC Commission:
a) The Applicant must make arrangements for his customer's parking that was approved by the ABC Commission,
b) The Applicant must keep a outside security guard on duty during all hours of operation to supervise the customers parking and noise.
c) The noise level of the establishment "must be maintained so that it does not disturb the neighbors."
I find that the evidence supports the continued enforcement of these restrictions.
12. Since the proposed location is in close proximity to a residential community, and the nature of its business has recently changed, it is suitable for the on-premise sale of beer and wine and sale and consumption, 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 renewal application for an on-premise beer and wine permit and sale and consumption license of Anthony L. Green for Park Avenue at 2706 N. Main Street, Columbia, 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 Park Avenue 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 two uniform security guards to patrol the area surrounding Park Avenue. The security guards shall prohibit a public disturbance of any kind at the location.
3. The Petitioner shall establish a customer parking plan that is approved in writing by the South Carolina Department of Revenue and the individual owners of the parking area. The above security guards shall monitor the approved parking areas to prohibit the consumption of any alcohol or drugs, loitering or excessive noise in those areas.
4. As long as the Petitioner holds a permit or license for this location, the current fence reflected in Petitioner's Exhibit 5 shall be maintained in good condition to accomplish both the limitation of movement between the properties and a good appearance.
5. The Petitioner or his employees shall pick up litter and debris from the ground of the nearby residences located on Geiger Avenue within four hours of the closing of Park Avenue.
6. The Petitioner shall not allow excessive noise to emanate from Park Avenue. Any noise that noticeably audible within any local residence with closed doors and windows shall be considered excessive. Furthermore, for the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facia evidence of a violation of this provision.
7. The Petitioner shall not sell beer, wine or alcohol 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 and sale and consumption license upon the payment of the required fee and cost by the Applicant.

AND IT IS SO ORDERED.

_________________________________
Ralph King Anderson, III
Administrative Law Judge

November 14, 1996
Columbia, South Carolina