SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) on the application of Beth S. Reeves d/b/a Smiley's for an on-premises beer and wine permit and minibottle license for a private club at 8701 Moorefield Memorial Highway, Liberty, South Carolina. After notice to the parties, a hearing was conducted on May 14, 1999. At the hearing, the Protestant withdrew his protest to the issuance of an on-premises beer and wine permit to Petitioner; therefore, such permit is granted. Based upon the evidence presented regarding the suitability of the location, the minibottle license is denied. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, 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, Beth Reeves, submitted an application for an on-premises beer and wine permit and a nonprofit private club minibottle license with the South Carolina Department of Revenue on September 3, 1998, for the premises located at 8701 Moorefield Memorial Highway in Liberty, South Carolina.

2. Petitioner has been leasing the proposed location from Carl B. Moore since December 1, 1998.

3. The proposed location operates as a private club, Smiley's. Petitioner incorporated Smiley's as a non-profit corporation on October 16, 1998. The stated purpose of the organization is to provide social and recreational gatherings of its members. Petitioner seeks the on-premises beer and wine permit and minibottle license to cater to the members of Smiley's.

4. The proposed location was previously licensed from approximately April, 1997 through November, 1998.

5. Petitioner has no criminal convictions and is a person of good moral character.

6. Petitioner is a legal resident of the United States.

7. Petitioner has resided in and maintained her principal place of abode in South Carolina for more than thirty days before applying for a permit and minibottle license.

8. Petitioner has never been cited for any violations of the alcoholic beverage control laws and she has never had a permit to sell beer and wine or alcoholic liquors suspended or revoked.

9. Petitioner is over twenty-one years of age.

10. Notice of application for the beer and wine permit and minibottle license was published in The Greenville News on October 28, November 2 and November 9, 1998. Notice was also posted at the proposed location for the time period required.

11. The Pickens County Sheriff, C. David Stone, filed a protest to Petitioner's application on the grounds that the proposed location is unsuitable because of inadequate resources for police protection, inadequate parking at the proposed location, and incidents that have recently occurred near the proposed location.

12. But for the protest, the Department would have issued the permit and minibottle license.

13. At the hearing of this matter, the Pickens County Sheriff withdrew his protest to the issuance of an on-premises beer and wine permit but maintained his protest to the issuance of a minibottle license for the proposed location.

14. The proposed location is in a primarily rural area.

15. Several residences are within close proximity to the proposed location. The nearest residence is 75 feet from the proposed location.

16. There is a school bus stop located approximately 100 feet from the proposed location on Moorefield Memorial Highway, which is a two-lane highway.

17. The location now has 25 parking spaces. Petitioner anticipates that the club would have approximately 20 to 25 patrons at any one time during the weekdays and 30 to 35 patrons at any one time on the weekends.

18. Petitioner plans to operate the club from 1:00 p.m. to 1 a.m. the following morning on Mondays through Saturdays.

19. The resources of the Pickens County Sheriff's office include 1.07 police officers per 1,000 citizens.

20. The proposed location is approximately 10 miles from the Pickens County Sheriff's office.

21. Within the past two and one-half years, several disturbances resulting in police incident reports have occurred near the proposed location. At least one of these incidents involved alcohol.

22. The proposed location is unsuitable for the issuance of a minibottle license due to inadequate resources for police protection, the proximity of a school bus stop on a two-lane highway, the proximity of several residences, the inadequacy of parking, and the occurrence of several disturbances in the immediate area surrounding the proposed location.

CONCLUSIONS OF LAW

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

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998), S.C. Code Ann. § 1-23-600(B) (Supp. 1998) and S.C. Code Ann. § 1-23-310 (Supp. 1998).

2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]" Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Court. App. 1984).

3. S.C. Code Ann. § 61-6-1820 (Supp. 1998) establishes the criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in this statute as a condition of licensing, such a consideration is proper. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

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).

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. 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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Court. App. 1984); see also Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

7. "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 . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

8. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Court. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Court. App. 1984).

9. I find the location to be unsuitable for the issuance of a minibottle license due to the inadequate resources for police protection, the proximity of a school bus stop on a two-lane highway, the proximity of several residences, the inadequacy of parking, and the occurrence of several disturbances in the immediate area surrounding the proposed location.

10. Because the Pickens County Sheriff withdrew his protest to the issuance of an on-premises beer and wine permit for the proposed location, the issue of the suitability of the location for issuance of an on-premises beer and wine permit is no longer before me. Therefore, the Department shall continue to process Petitioner's application for an on-premises beer and wine permit.

ORDER

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

ORDERED, that the Department shall continue to process the application of Beth S. Reeves for an on-premises beer and wine permit for Smiley's, 8701 Moorefield Memorial Highway, Liberty, South Carolina.

The application of Beth S. Reeves for a minibottle license for 8701 Moorefield Memorial Highway, Liberty, South Carolina is denied.

AND IT IS SO ORDERED.

___________________________

JOHN D. GEATHERS

Administrative Law Judge

May 28, 1999

Columbia, South Carolina.