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:
Wet and Wild, LLC vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Wet and Wild, LLC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
06-ALJ-17-0606-CC

APPEARANCES:
James H. Harrison, Esquire, for the Petitioner

Harry Hancock, Esquire, for the Respondent

Sergeant Fitch, for the Protestant Charleston County Sheriff’s Office
 

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


 

 

 

 

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