SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the application of Jodi L. Hughes, d/b/a Palmetto Lanes for an on-premises beer and wine permit for a bowling alley located at 1029 Peachtree Street in Clinton, South Carolina. After notice to the parties, a hearing was conducted on April 21, 1997. Based upon the evidence presented, the beer and wine permit is GRANTED. Any issues raised in the proceeding or hearing of this matter that are not addressed in this Order are deemed denied. ALJD Rule 29B.

1. The applicant, Jodi L. Hughes, is over the age of twenty-one and is a life-long resident of South Carolina and the United States.

2. She has never been convicted of a crime and is a person of good moral character.

3. Ms. Hughes has not held any beer and wine permits in her name, but for at least twelve years, she has managed several bowling facilities in which beer and wine were served. To her knowledge, no citations were written against those locations for violation of laws relating to the sale of beer and wine.

4. Notice of the application was advertised in The Clinton Chronicle during the weeks of August 21, 28 and September 4, 1996. Notice was also posted at the proposed location for the time period required.

5. The proposed location is Palmetto Lanes and Billiards at 1029 Peachtree Street in Clinton, South Carolina. The business is a bowling alley and cafe. There are also video game machines in a side room and seven pool tables in another side room.

6. Access to the pool tables is restricted to persons twenty-one years of age or older who must present identification at the service counter and obtain the pool cues and balls. There are video poker machines located along the wall outside of the room where the other video games are located. This wall is in full view of the counter.

7. If granted the permit, the bar would be located in the room with the pool tables. No beer would be sold until after 6:00 p.m. Beer would only be sold in clear plastic cups. Other beverages are sold in plastic or paper cups that are not clear. Sale and consumption of beer would be allowed in the bowling area as well as the pool room and only to persons who are participating in these activities.

8. The hours of operation are Sunday, Monday, Tuesday and Thursday, 1 p.m. to 11 p.m.; Wednesday, 9 a.m. to 11 p.m.; Friday 1 p.m. to midnight; and Saturday 9 a.m. to midnight. There are approximately six or seven employees on the premises during business hours.

9. At the corner of Highway 76 (W. Carolina Ave.) and Peachtree Street, there is a gas station convenience store that sells beer and wine to go. This business is in the same block as the bowling alley. The gas station is approximately 1132 feet from the proposed location and less than 200 feet from a residence.

10. There are other locations not in the immediate vicinity that sell beer and wine for off-premises consumption.

11. Lydia Presbyterian Church is located one-half mile from the proposed location. The Lydia Church of God is located approximately six-tenths of one mile from the proposed location. The closest residence is over five hundred feet from the proposed location.

12. The application was protested by many members of the community including the principal of Bell Street Middle School.

13. Bell Street Middle School is located on the opposite side of Peachtree Street just past the bowling alley. The sidewalk leading to the school is on the opposite side of the street from the proposed location. Beginning at the access road and continuing on Peachtree Street away from the proposed location, the school is fenced.

14. There is a small access road/driveway leading from Peachtree Street to the front of the school. The distance from the proposed location to the entrance of the school from the driveway drop off point is 534 feet. The distance from the proposed location to the beginning of the driveway at Peachtree Street is 409 feet.

15. The school has many after school and athletic activities throughout the school year which may occur in the evening.

16. The middle school children walk past the location and often frequent the bowling alley after school. Hughes allows the students to use a public phone located in the facility at no cost. Several children are picked up by their parents at the bowling alley.

17. The protestors expressed concern about the consumption of beer from open containers and around school children aged 11 to 14; the possibility of consumption and driving while intoxicated; the amount of beer bottle litter already in the area; and the unavailability of controls within the bowling alley to restrict access to beer while people are bowling in the lanes.

18. There is a lot of litter in the bowling alley parking lot and across the street along the sidewalk. This litter includes beer bottles. Hughes picks up the trash in the parking lot each morning. Neither the school principal nor the representative of the parent organization of the school observed any problem with the trash.

19. The bowling alley does not allow food or beverages in the bowling lanes and provides tables behind the bowlers for placement of food and drink. The protestors feel that there is not sufficient control over the beverages left at the tables to allow consumption of beer.

20. The primary objection, however, seems to be a general concern about the presence of open containers of beer where children are located. The protestors do not object to the convenience store and do not appear to object to the empty broken beer bottles located in the area which indicate the possibility of drinking and driving.

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

1. The Administrative Law Judge Division is vested with the powers, duties and responsibilities of the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1995).

2. S.C. Code Ann. § 61-9-320(6) (Supp. 1995) provides the statutory requirements for the issuance of on-premises beer and wine permits. It provides that no permit authorizing the sale of beer or wine may be issued unless "[t]he location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indication of unsuitable location, the proximity to residences, schools, playgrounds, and churches...."

3. As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine 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. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); and Taylor v. Lewis, 261 S.C.168, 198 S.E.2d 801 (1973).

5. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).

6. There has been no evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit would have an adverse impact on the community.

7. The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not support by facts. Taylor v. Lewis, supra; Smith v. Pratt, supra.

8. 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 residents protest the issuance of the permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

9. Petitioner meets all statutory requirements for the issuance of an on-premises beer and wine permit. In addition she has twelve years of experience in bowling facilities that serve beer and wine. During that time, there have been no problems with underage consumption of beer and wine.

10. The location is suitable for the issuance of an on-premises beer and wine permit.

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

ORDERED, that the application of Jodi L. Hughes, d/b/a Palmetto Lanes for an on-premises beer and wine permit for the location at 1029 Peachtree Street in Clinton, South Carolina is GRANTED. The Department shall issue an on-premises beer and wine permit upon the payment of the appropriate fees.

AND IT IS SO ORDERED.

ALISON RENEE LEE

Administrative Law Judge

August 7, 1997

Columbia, South Carolina