ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to
S.C. Code Ann. §61-4-520 (Supp. 2005) for a contested case hearing. The
Petitioner seeks an on-premises beer and wine permit and liquor by the drink
license (denominated as a business minibottle license on the application) for
the location at 2028 A Pittsburg Avenue, Charleston, South Carolina. This
matter is presently before the Court because of a protest by the Charleston
County Sheriff’s Department. After notice to the parties and Protestants, a
hearing was conducted on September 11, 2006 in Columbia, South Carolina. At the
hearing, the parties, their counsel and Protestant were present as indicated.
I find and conclude that the license and permit requested by the Petitioner
shall be granted as outlined below.
FINDINGS
OF FACT
Having observed the testimony of the witnesses and exhibits presented at
the hearing and having closely passed upon their credibility, I make the
following Findings of Fact by a preponderance of the evidence:
1. Notice of the time, date and location of the hearing was given
to all parties and protestant as required with the Notice of Hearing mailed
July 28, 2006.
2. The
Petitioner seeks an on-premises beer and wine permit and liquor by the drink
license
for the location located at 2028 A Pittsburg Avenue Charleston, South
Carolina. This location is planned as a restaurant.
3. The
Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all
statutory requirements and would have granted the license and permit but for
the protests. At the hearing, the parties agreed that all statutory and
regulatory requirements have been met and that the sole issue to be determined
is the suitability of the location based on the Protestant’s concerns about the
effect of an additional alcohol outlet on law enforcement in the area.
4. The proposed
location will have seating for 40 to 50 people. John Robinson, a principal of
Wet and Wild, LLC, testified that this location will be a nice restaurant and
bar. There will not be any interior connection between this location and the
Southern Belle, an adult entertainment establishment, next door. Mr. Robinson
is also involved in several other ventures that hold alcohol licenses, and he
testified that there have been no alcohol violations at those locations.
5. The area is
heavily industrial. There are no schools, churches or playgrounds nearby.
There are several other locations in the immediate area which are licensed to
sell alcohol, some of which Mr. Robinson is involved with.
6. There have
been law enforcement concerns in the past at this location. There have been
reports of assaults in the parking lot. To address these concerns, Wet and
Wild, LLC has installed security cameras around the parking lot and hired two
uniformed security guards to patrol the outside of the building. The parking
lot can accommodate approximately 200-250 vehicles.
7. Sergeant
Fitch testified on behalf of the Charleston County Sheriff’s Department that
there have been several assaults in the area of the Southern Belle and that
many times the complainants have chosen not to press charges. He alleged that
some of these assaults were perpetrated by the “bouncers” at the Southern Belle
and that the victims had to be hospitalized, but chose not to follow through
with prosecution.
CONCLUSIONS
OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law,
the following:
1. The South Carolina Administrative Law Court has jurisdiction
over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2005).
2. The factual determination of whether or not an application is
granted or denied is usually the sole prerogative of the agency charged with
rendering that decision. Palmer v. South Carolina ABC Comm’n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984).
3. Although “proper location” is not statutorily defined, broad
discretion is vested in the trier of fact to determine the fitness or
suitability of the proposed business location of an applicant who is seeking a
permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C.
593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel
v. South Carolina ABC Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and
consumption license).
4. It is also the fact finder’s responsibility to judge the
demeanor and credibility of the witnesses and determine the relevance and
weight of any testimony offered.
5. In considering the suitability of a location, it is relevant
to consider the previous history of the proposed location and to determine
whether the testimony in opposition to a permit consists of opinions and
conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168,
198 S.E.2d 801 (1973).
6. 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 alone to deny the application. 48 C.J.S. Intoxicating
Liquors § 119 (1981).
7. S.C. Code Ann. § 61-4-525 (Supp. 2005) provides that a person
residing in the county in which a beer and wine permit is requested to be
granted, or a person residing within five (5) miles of the location, may
protest the issuance of the permit if he files a written protest.
8. Permits and licenses issued by the State are not rights or
property, but are rather privileges granted in the exercise of the police power
of the State. See Feldman v. South Carolina Tax Comm’n, 201 S.C.
49, 26 S.E.2d 22 (1943).
9. The Protestant Sergeant Fitch for the Charleston County
Sheriff’s Department is concerned about the effect of this location on law
enforcement efforts in the area. He testified that there have been several
assaults in the area over the past several years. He is concerned that an
additional alcohol outlet will exacerbate the existing strain on law
enforcement.
10. After considering all the relevant factors, I find that the
restaurant’s location is suitable for the on-premises sale of beer and wine and
liquor by the drink license. Although this court appreciates the concerns of
the Protestant, and the possible strain on law enforcement, the location and
the Petitioner have met all the statutory and regulatory requirements. In
addition, the Petitioner has made significant efforts to address the
Protestant’s concerns about peace and safety in the area around this
establishment. Mr. Robinson testified that there have been no serious
incidences in the parking lot since he installed the outdoor security cameras.
In addition, Sergeant Fitch was not aware of any recent complaints in the area.
Finally, the SLED report indicated that the applicant had a reputation for
peace and good order in the community.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is
hereby:
ORDERED that the South Carolina Department of Revenue grant the
Petitioner’s application for an on-premises beer and wine permit and sale and
consumption (minibottle) license upon satisfactory completion of all
renovations, inspections and payment of any and all necessary fees.
AND IT IS SO ORDERED.
___________________________________
CAROLYN
C. MATTHEWS
Administrative
Law Judge
October 18, 2006
Columbia, South
Carolina |