South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
James A. Sims, Sims Associates, d/b/a The Sawmill vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
James A. Sims, Sims Associates, d/b/a The Sawmill

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0275-CC

APPEARANCES:
For the Petitioner: James H. Harrison

For the Respondent/South Carolina Department of Revenue:

Arlene D. Hand, Esquire (Excused from appearance at hearing)
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1996) for a hearing pursuant to the application of James A. Sims, Sims Associates, d/b/a The Sawmill ("Petitioner") for an on-premise beer and wine permit (AI 110986) and an on-premise sale and consumption ("mini-bottle") license (AI 110987) for the premises located at #9A Sawmill Road, City of Kershaw, Kershaw County, South Carolina ("location").

A hearing was held on July 14, 1997, at the offices of the Administrative Law Judge Division, ("Division"), Columbia, South Carolina. The issue considered was the suitability of the proposed location.

The application was protested by Sheriff Stephen D. McCaskill of the Kershaw County Sheriff's Department. Chief Deputy James E. Thomley appeared at the hearing and testified on behalf of the Sheriff's Department. Also testifying in opposition to the application was the Rev. Robert Rivers of Bethany Baptist Church, which is located approximately two miles from the location. The South Carolina Department of Revenue ("Department"), as set forth in the agency transmittal form and Motion to Be Excused, advised the Division it would have issued the permit and license to the Petitioner as a nonprofit private club but for the protest. The Department's Motion to Be Excused from appearing at the hearing was granted.

The application requests are granted.





EXHIBITS


Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of the record. At the hearing, the petitioner placed into the record, without objection, six photographs of the interior and exterior of the location.

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 the evidence:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and subject matter of the hearing was timely given to all parties and the protestants.

3. The Petitioner is seeking an on-premise beer and wine permit (AI 110986) and a sale and consumption license (AI 110987) for a nonprofit private club known as "The Sawmill", located at #9A Sawmill Road, Kershaw County, South Carolina. The location is outside the city limits of Kershaw.

4. The location is within a rural area, directly off Highway 521. It is close to the point where state road S-28-498 intersects with Highway 521. There are two residences located in the vicinity of the location; the closest residence is across Highway 521 and is approximately 325 feet from the location. Neither of the residents protested the application.

5. The Bethany Baptist Church is located approximately two miles from the location. A ball field is also located approximately two miles from the location, near the church. There are no churches, schools, or playgrounds within 500 feet of the location.

6. The building at the location contains one other business besides that of Petitioner. It is an establishment known as "Tripp's." Tripp's contains three video game rooms containing video poker machines, as well as a small bar. It has been licensed to sell beer and wine on-premises for approximately one year. Petitioner leases the location from the owner of Tripp's, a corporation known as Tripp's, Inc.

7. The Petitioner, James A. Sims, was born on April 27, 1971. He has been a resident of South Carolina all his life and presently resides in Rock Hill, South Carolina.

8. Petitioner has never had a beer and wine permit or a business sale and consumption license revoked.

9. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The State, a newspaper of general circulation in the local area where the Petitioner proposes to engage in business.

10. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

11. The Petitioner is of good moral character and has no record of any criminal convictions.

12. The Sawmill, Inc. has been incorporated as a nonprofit corporation with the office of the Secretary of State of South Carolina. It has prepared By-Laws which define its offices and purposes, its membership, meetings and elections of its Board of Directors, the functions and duties of its officers, procedures regarding the dissolution of the corporation, and amendments to the By-Laws.

13. Petitioner intends to operate the location as a private club open to members and guests only. Its regular hours of operation will be 4:00 p.m. to 2:00 a.m., Thursday through Saturday. It will also be available to members for private parties and other special events during the hours when the location is not normally open.

14. The President of The Sawmill, Inc., James W. Sims, will be the general manager of the location. The location will employ four employees. One of the employees will be stationed at the door to enforce the membership requirements.

15. The parking lot at the location is well lighted and will accommodate approximately one hundred cars, which will be adequate for the number of patrons the Petitioner intends to serve.

16. The location contains a jukebox, which is not audible outside the building when set at its maximum volume.

17. Mr. Henry Cauthen, Jr., who is one of the owners of Tripp's, testified that sheriff's deputies patrol the area on a regular basis, and that in the year Tripp's has been open, there had been no problems with crime at that location. He further stated that one of the conditions of the Petitioner's lease is that if there is even one problem at the location, Petitioner will be evicted.

18. The Kershaw County Sheriff, through his Chief Deputy, protested the application and voiced several concerns at the hearing. His primary concern is that the Sheriff's Department, which is located in Camden (approximately 25 miles from the location), lacks the manpower to adequately protect the outlying areas of the county. The Chief Deputy stated that on any given shift, the Sheriff's Department only has five men to patrol the county, and though the population of the county is increasing steadily, the number of deputies available has not been increased. In addition, the number of calls to the Sheriff's Department has increased this year. In 1996, there were approximately 19,000 calls made for the entire year. In the first half of 1997, 14,000 calls have been made so far. The Chief Deputy was particularly concerned about an increase in crime at bars and video poker parlors in the outlying areas, including several armed robberies, and one murder of an employee of a bar and video poker establishment called the "Pink Flamingo." However, the Chief Deputy further stated that all deputies are supposed to patrol all bars and similar establishments in their areas during the operating hours of the businesses; and that although officers had been called several times to Tripp's, which is next door to the location, no charges had resulted from any of those calls.

19. The Reverend Robert Rivers of Bethany Baptist Church testified in opposition to the application. He reiterated the concerns of the Sheriff's Department regarding the lack of manpower. He stated that he was concerned for the safety of people in the community because armed robberies had occurred at other locations in the vicinity which held beer and wine permits. He questioned the need for an additional licensed location in the community, and voiced a moral opposition to the sale of alcoholic beverages.

20. Except for the protests filed, the Department would have issued the beer and wine permit and business sale and consumption license for the nonprofit corporation.

CONCLUSIONS OF LAW


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

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. S.C. Code Ann. § 61-4-520 (Supp. 1996), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

1) The applicant, any partner of 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 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, schools, 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 must 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 . An applicant for a beer and 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 wide and eight and one-half inches high;

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

3. S.C. Code Ann. § 61-6-1820 (Supp. 1996), which sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license, provides as follows:

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, § 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 within 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. An applicant for a beer and 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) tell an interested person where to protest the application;

(c) be in bold type;

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

(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.

4. Petitioner has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1996), concerning his residency, age and moral character, as well as the publication and notice requirements.

5. S.C. Code Ann. § 61-6-20 (2) and (3) (Supp. 1996), which define a bona fide business engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, read in part as follows:

As used in the ABC Act, unless the context clearly requires otherwise:

(2) "Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

(3) "Furnishing lodging" means those businesses which rent accommodations for lodging to the public on a regular basis consisting of not less than twenty rooms.

6. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of § 61-6-1820 are met. In addition to the requirements contained in S.C. Code Ann. § 61-4-520, Section 61-6-1820 requires that the mini-bottle licensee be either a bona fide non-profit organization or conduct a bona fide business engaged primarily and substantially in food preparation and service or the furnishing of lodging.

7. S.C. Code Regs. 7-17, entitled "Sale and Consumption at Nonprofit Organizations", sets forth the requirements which must be met to obtain a license. Petitioner has complied with those requirements in both its Articles of Incorporation and its By-Laws.

8. S.C. Code Ann. § 61-6-1600 (Supp. 1996) provides as follows:

Nonprofit organizations which are licensed by the department under this article may sell alcoholic liquors in mini-bottles. Members or guests of members of these organizations may consume alcoholic liquors sold in mini-bottles upon the premises between the hours of ten o'clock in the morning and two o'clock the following morning.

9. A license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 1996) if the department is of the opinion that: (1) applicant is not a suitable person to be licensed; (2) the store or place of business to be occupied by the applicant is not a suitable place; or (3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated municipality or other community.

10. S.C. Code Ann. § 61-6-120 (Supp. 1996) prohibits the issuance of a liquor license for on-premise consumption if the place of business (location) is within three hundred feet (300') of any church, school or playground situated within a municipality or within five hundred feet (500') of any church, school or playground situated outside a municipality. No churches, schools or playgrounds are located within the prescribed proximity to render the proposed location unsuitable.

11. 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 a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

12. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

13. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the protestants consisted mainly of opinions and a claimed detriment to the community which is largely conjectural. Although there had been some armed robberies in the area, there was no evidence that the granting of a permit and license to the location would contribute to this concern or to any of the other concerns raised by the protestants, particularly in view of the fact that Tripp's, which is next door to the location in the same building, has been operating with an on-premises beer and wine permit for approximately one year without significant incident. However, if a situation at a licensed location rises to the level that the safety and well-being of residents of the community is threatened, then evidence to that effect may be presented to the Department at the time of any future renewal or issuance of a permit or license.

14. Standards for judging the suitability of a proposed location for the sale of beer, wine or liquor are not determined by a local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, as regulated by the State.

15. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an applicant meets the requisite qualifications and conditions, is a fit person and the proposed place of business is a proper one, the department must issue the permit after payment of the fee as required by law.

16. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

17. A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the license pursuant to S.C. Code Ann. § 61-6-1830 (Supp. 1996).

18. S.C. Code Ann. § 61-2-160 (Supp. 1996) prohibits the issuance, renewal or transfer of a permit or license under Title 61 if the applicant owes state or federal government delinquent taxes, penalties or interest.

19. I conclude that the Petitioner has met his burden of proof in showing that he meets all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption ("mini-bottle") license as a nonprofit corporation at the location. I further conclude that the proposed location is a proper one for granting the permit and license.

ORDER


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

ORDERED that the application of James A. Sims, Sims Associates, d/b/a The Sawmill, for an on-premise beer and wine permit and a business sale and consumption ("mini-bottle") license as a nonprofit corporation at its location at #9A Sawmill Road, Kershaw, Kershaw County, South Carolina is granted, and

IT IS FURTHER ORDERED that the Department of Revenue issue the permit and license upon Petitioner's compliance with the requirements of S.C. Code Ann. § 61-2-160 (Supp. 1996) and

upon Petitioner's payment of the required fees and costs.

AND IT IS SO ORDERED.







__________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

July 21, 1997


 

 

 

 

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