ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003),
S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003), and S.C. Code Ann. § 1-23-600(B) (Supp.
2003) for a contested case hearing. Petitioner Jerry Montgomery seeks an on-premises beer and wine
permit for his pool hall located at 442 Percival Road in Columbia, South Carolina. Respondent
South Carolina Department of Revenue (Department) would have granted the permit but for the
protests filed by several local residents regarding the suitability of the proposed location.
Accordingly, the Department was excused from appearing at the hearing of this matter. After timely
notice to the parties and the protestants, a hearing of this case was held on August 31, 2004, at the
Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented
regarding the suitability of the proposed location and upon the applicable law, I find that Petitioner’s
application for an on-premises beer and wine permit should be granted.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, 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.On September 23, 2003, Petitioner Jerry Montgomery submitted an application to the
Department for an on-premises beer and wine permit for his pool hall, known as Jerry’s Amusement
Center, located at 442 Percival Road in Columbia, South Carolina. This application and the
Department’s file on the application are hereby incorporated into the record by reference.
2.Petitioner is a person of good moral character and has no record of any criminal
convictions. Further, Petitioner has no record of violating the laws governing the sale of alcoholic
beverages, and has not had a beer and wine permit issued to him suspended or revoked.
3.Petitioner is over twenty-one years of age, has no delinquent state or federal taxes,
and is a legal resident of the United States and of the State of South Carolina. In addition, Petitioner
resides and maintains his principal place of abode in South Carolina, and did so for at least thirty
days prior to making his application for a beer and wine permit.
4.Notice of Petitioner’s application was published in The Columbia Star, a newspaper
published and circulated in Columbia, South Carolina, once a week for three consecutive weeks, and
proper notice of the application was posted at the proposed location for fifteen days.
5.The proposed location is situated in a primarily commercial area along Percival Road.
There are several businesses in the immediate vicinity of the proposed location, including a barber
shop, a service station, a “soul food” restaurant, and a convenience store, which is licensed for the
sale of beer and wine for off-premises consumption. In fact, the soul food restaurant and the
convenience store are located in adjoining portions of the building housing Petitioner’s pool hall.
In addition to these businesses, there are three apartment complexes in the area surrounding the
proposed location. There are no churches, schools, or playgrounds located within close proximity
to the proposed location, and, other than the nearby apartment complexes, there is no residential
development in the vicinity of the location.
6.Petitioner leases the proposed location from the Stern Realty Partnership II for the
operation of a “billiards room,” and Petitioner has operated a pool room at the location, without
incident, for approximately one year.
7.The protestants who appeared at the hearing of this matter raised several general
concerns regarding the proximity of Petitioner’s pool hall to residential developments in the broader
area surrounding the location. In particular, the protestants expressed concerns with the proximity
of the proposed location to a school-bus stop and with the effect Petitioner’s business could have
upon the children who live in the nearby apartment complexes. The two protestants who reside in
the general area also voiced their concern about the proximity of the location to a road which leads
into their residential neighborhood, which is located about a half-mile from the location. No
residents of the apartment complexes near the proposed location appeared at the hearing to protest
Petitioner’s application.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the South Carolina Administrative Law
Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003), S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2003), and S.C. Code Ann. § 1-23-600(B) (Supp. 2003).
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. S.C.
Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see
also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.S.C. Code Ann. § 61-4-520 (Supp. 2003) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the proposed location be a
proper and suitable one. See id. § 61-4-520(6)-(7).
4.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness and suitability of a particular location for the requested permit.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5.The determination of suitability of location is not necessarily a function solely of
geography. Rather, 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. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6.However, without sufficient evidence of an adverse impact on the community, a
permit application must not be denied if the statutory criteria are satisfied. The fact that the issuance
of a permit or license is protested is not a sufficient reason, by itself, to deny the application. See
48 C.J.S. Intoxicating Liquors § 119 (1981).
7.Further, 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 supported by the
facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); see also, e.g., Southland Corp. v. City of Westminster City Council, 746 P.2d
1353, 1356 (Colo. Ct. App. 1987) (holding that the testimony of local school officials who objected
to the issuance of a beer license did not provide a basis for denying the license because their
testimony “was wholly speculative in nature, and was based exclusively on what ‘might’ occur if the
license were granted”).
8.In making a decision in this matter, this tribunal is constrained by the record before
it and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria
enacted by the South Carolina General Assembly for the issuance of a beer and wine permit, and
there has not been a sufficient evidentiary showing that the proposed location is unsuitable for
Petitioner’s business or that the issuance of the permit would create problems in or have an adverse
impact upon the surrounding community. Petitioner’s pool hall is located in an urban, commercial
area near other businesses that attract patrons for social purposes (e.g., the barber shop and the soul
food restaurant) and that sell beer and wine (e.g., the convenience store). Accordingly, the operation
of Petitioner’s business with a beer and wine permit would not be incongruent with the character of
the area immediately surrounding the proposed location. Further, the concerns raised by the
protestants in opposition to the proposed permit are primarily speculative and based largely on what
might occur if Petitioner’s permit is granted. In the case at hand, Petitioner has operated his pool
hall at the location for approximately one year without incident and without any demonstrable
adverse effect upon the surrounding community. Therefore, while it is possible that the introduction
of the sale of beer and wine for on-premises consumption in Petitioner’s pool room will alter the
character of Petitioner’s business such that it will have a negative impact upon the community, there
is no evidence in the record to suggest that this turn of events is likely to occur. To the contrary, the
evidence presented at the hearing suggests that Petitioner is capable of operating a pool hall in a
responsible manner and in harmony with the surrounding community. In sum, while this tribunal
recognizes the protestants’ right to oppose Petitioner’s permit application and is respectful of their
concerns with the issuance of the requested permit, the general and speculative arguments proffered
by the protestants do not constitute a sufficient basis upon which to deny Petitioner’s application.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall GRANT Petitioner’s application for
an on-premises beer and wine permit for the premises located at 442 Percival Road in Columbia,
South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 16, 2004
Columbia, South Carolina |
