ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. §§
1-23-310 et seq. (2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2006), and
S.C. Code Ann. § 61-2-260 (Supp. 2006). The petitioner, In Sook Choi, d/b/a
World Cup Billiards (“Petitioner”), applied for a liquor by the drink license
pursuant to §§ 61-6-1600 et seq. for the location at 6119 White Horse
Road, #4, Greenville, South Carolina 29611. Mr. R. H. Patterson, Sr. (“Patterson”)
filed a written protest to the Petitioner’s application. Respondent South
Carolina Department of Revenue (“Department”) denied the application pursuant
to § 61-6-1825 due to the receipt of Patterson’s valid public protest. The
Department stated in the Final Agency Determination that it would have granted
the permit but for the receipt of the public protest.
After
notice to the parties and the protestant, the court held a hearing on this
matter on March 22, 2007. Both parties and the protestant appeared at the
hearing. Evidence was introduced and testimony presented. After carefully
weighing all of the evidence, the court finds that the Petitioner’s application
for this location should be granted.
ISSUE
The
only issue in dispute is the suitability of the location. Schudel v. S.C.
Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
FINDINGS OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a preponderance
of the evidence.
Evidence
was presented regarding all of the relevant statutory criteria. Notice of the
time, date, place, and subject matter of the hearing was given to all parties
and the protestant.
The
Petitioner seeks a permit for a license to sell liquor by the drink for the
location at 6119 White Horse Road, #4, Greenville, South Carolina 29611. The
proposed location is outside the municipal limits of Greenville. Notice of the
application was lawfully posted at the location and was published in a
newspaper of general circulation.
Ms.
In Sook Choi is the sole owner of the business seeking the requested license.
She is over the age of twenty-one. She is of good moral character and has
never had a permit or license to sell beer, wine, or liquor revoked. She has
no criminal record and does not owe the state or federal government any
delinquent taxes, penalties, or interest.
The
Petitioner seeks the requested license for a pool hall and restaurant, World
Cup Billiards, which she has operated for four and a half years. The
Petitioner has been permitted to sell beer and wine since its inception without
any citations for violations of the alcoholic beverage control statutes or
incidents necessitating police involvement.
The
proposed location is in a shopping center on White Horse Road. The area in the
vicinity of the proposed location is substantially commercial consisting
predominantly of retail stores and restaurants. Parking at the proposed
location is adequate.
Han
Choi, the owner’s son, is the manager of World Cup Billiards. He testified
regarding the nature of the business. World Cup Billiards is one of the
largest pool halls in Greenville with twenty-two pool tables and a large
customer base. The Petitioner applied for the liquor by the drink license to
expand its business by offering more variety to its customers and to bring in
more revenue. Han Choi stated that he and In Sook Choi are the only ones
currently serving the alcohol and that they abide by the alcoholic beverage
control laws. He further stated that he will ensure that future employees are
properly trained as well. World Cup Billiards has three arcade games and Han
Choi stated he is familiar with the gambling laws in this state and that World
Cup Billiards abides by them.
Patterson
testified in opposition to the application. Patterson believes the license
should be denied for various reasons. First, he stated that there are already
too many locations that serve beer, wine, and liquor in Greenville County and
by increasing that number he fears it will increase the dangers in the
community. Based on his experiences, he believes the economic and social harms
from alcohol outweigh any benefits that may be derived from its sale or
consumption. Further, Patterson testified that he believes there is not
sufficient police protection in this state to allow permits or license to be
issued. Finally, Patterson presented Mr. David Earle Griffith (“Griffith”) to
provide support for his opposition. Based on Griffith’s personal experiences,
he believes that alcohol is unsafe. Griffith also stated that the police force
does not adequately protect the community from the effects of alcohol, but
merely arrests people after crimes have been committed.
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
1. Jurisdiction
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[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). The weight
and credibility assigned to evidence presented at the hearing of a matter is
within the province of the trier of fact. See S.C. Cable Television Ass’n
v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589
(1992). Furthermore, a trial judge who observes a witness is in the best
position to judge the witness’s demeanor and veracity and to evaluate the
credibility of his testimony. See, e.g., Woodall v. Woodall, 322
S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co.,
300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
2. Suitability
of Location
a. Generally
Section 61-6-1820 sets forth the basic criteria for the
issuance of a liquor license. However, a liquor license may be denied if the
proposed location is not suitable. See Schudel v. S.C. Alcoholic
Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981). Therefore, a
license may be denied if the location of the business is not a proper one.
b. Factors
in Determining Proper Location
“Proper location” is not statutorily defined, but broad
discretion is vested in the trier of fact to determine the fitness or
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). In
determining whether a proposed location is suitable, it is proper for this
tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 326, 338 S.E.2d 335, 337 (1985); Palmer,
282 S.C. at 249, 317 S.E.2d at 478 (citing Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972)). The determination of suitability of location is not
necessarily solely a function 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,
287 S.C. at 326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276
S.E.2d at 308. Further,
a liquor license or permit may be
properly refused on the ground that the location of the establishment would
adversely affect the public interest, that the nature of the neighborhood and
of the premises is such that the establishment would be detrimental to the
welfare . . . of the inhabitants, or that the manner of conducting the
establishment would not be conducive to the general welfare of the community.
48
C.J.S. Intoxicating Liquors § 121 at 501 (1981).
Other factors may be considered when determining whether a
location is proper. For example, a liquor license shall not be granted if the
place of business is within 300 feet (if within a municipality) or within 500 feet (if outside a municipality) of any
church, school, or playground. § 61-6-1820(3); § 61-6-120.
Additionally, consideration can be given to the impact the
issuance of the license will have on law enforcement. Fowler v. Lewis,
260 S.C. 54, 194 S.E.2d 191 (1973); Roche v. S.C. Alcoholic Beverage Control
Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Evidence that the granting of
a permit will place a strain upon police to adequately protect the community must
be weighed. Moore v. S.C. Alcoholic Beverage Control Comm’n, 308 S.C.
160, 162, 417 S.E.2d 555, 557 (1992). Denial is appropriate where the public
areas surrounding the proposed location have been the source of constant law
enforcement problems or significant problems with public intoxication. Roche,
263 S.C. at 451, 211 S.E.2d at 243. Another pertinent factor is whether police
have been summoned to the scene on prior occasions when licensed to another
party. Schudel, 276 S.C. at 141-42, 276 S.E.2d at 309-10. It is
relevant whether the location is near other locations that have either been a
constant source of law enforcement problems or are locations where young people
congregate and loiter. Palmer, 282 S.C. at 250, 317 S.E.2d at 478.
Similarly, consideration can be given to whether the location
is heavily traveled or creates a traffic danger. Id. Furthermore, whether the location has in the recent past been permitted
and whether the location is now more or less suitable than it was in the past
is a relevant factor. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973). Finally, a valid consideration is whether the surrounding area
is substantially commercial. Id.; Byers v. S.C. Alcoholic Beverage
Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
Without sufficient evidence of an adverse impact on the
community, a license application must not be denied if the statutory criteria
are satisfied. The fact that the issuance of a license is protested is not a
sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating
Liquors § 119 (1981). Moreover, the denial of a license 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, 261 S.C. at 171, 198 S.E.2d at 802.
c. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds the proposed location to be suitable. The area surrounding the
proposed location is primarily commercial. No evidence was presented of law
enforcement problems either at the proposed location or in the surrounding
area. Parking is adequate.
The
court observes that the proposed location has held a permit to sell beer and
wine for four and a half years with no problems that would contraindicate
licensure. Although Patterson stated that the police protection is
insufficient in the area, he offered no evidence that the proposed location has
been a source of problems for law enforcement. The court finds that Patterson’s
concerns as to the proposed location, though sincere, are simply too general
and speculative to warrant denial of the permit and license sought. Patterson’s
main concerns were speculations as to impaired drivers and the social harms
that alcohol may cause. The court finds that Patterson’s general fears are
insufficient to demonstrate an adverse impact on the surrounding community of
the proposed location. Patterson’s remaining concerns are political in nature
and are properly addressed to the General Assembly rather than this court, which
is bound to apply the laws passed by the legislature.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above, the court finds
that the Petitioner meets all of the statutory requirements for the issuance of
a license to sell liquor by the drink. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for a license
to sell liquor by the drink for the premises located at 6119 White Horse Road,
#4, Greenville, South Carolina 29611 in accordance with § 61-2-80 and §
61-6-1820.
IT IS SO
ORDERED.
_______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
April 9, 2007
Columbia, South Carolina
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