ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. §61-2-90 (Supp. 2006) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2006) for an expedited contested case hearing. The Petitioner, DeLeon Group, Inc. d/b/a Crazy D’s Restaurant & Lounge (“Establishment”) located at 224 Redbank Road, Goose Creek, South Carolina seeks an on-premises beer and wine permit (“Permit”) and liquor by the drink license (“License”) for the establishment. A timely protest was received on February 15, 2007 from H.M. Conner on behalf of the Oaks Estates Civic Club (“Protestant”). The Protestant asserts that the opening of the Bar and Grill would have a detrimental impact on their subdivision. The Protestant is mainly concerned about: loud noise; heavy traffic from the patrons entering and leaving the establishment; violence and drunk driving as a result of alcohol consumption on the property; close proximity to a church; patrons parking in the streets; and long hours of operation. The South Carolina Department of Revenue (“Department”) determined that but for the timely protest, the license and permit would have been issued because Petitioner met all other statutory requirements. A hearing on the merits of this case was held on June 28, 2007 at the Administrative Law Court in Columbia, South Carolina. Notice of the time, date, place, and subject matter of the hearing was provided to all parties prior to the hearing date. All parties listed above were present at the hearing.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in this matter and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks an on‑premises beer and wine permit and liquor by the drink license for the establishment known as Crazy D’s, located at 224 Redbank Road, Goose Creek , South Carolina.
2. Notice of the application was lawfully posted for fifteen days at the location, and
notice of the application was also published in a newspaper of general circulation in the area for three consecutive weeks. The concerns of Protestants were timely received by the Department on February 15, 2007.
3. The location has been permitted previously for the purposes of selling beer, wine and liquor and has served as a Restaurant and Lounge previously. There is no evidence that the former establishments had problems with drugs or violence within the last ten years.
4. While it is true that the Establishment is positioned at the entrance of the Oaks Estates subdivision, the Establishment is located on a busy highway in a highly commercialized area. There are approximately ten to twelve businesses with liquor licenses and/or beer and wine permits in the area. The opening of the Establishment would decrease the number of licensed businesses in the area, because the owner shut down another “Crazy D’s,” which was also located on Redbank Road and closed the bar which operated where the current establishment is located.
5. The Bar and Grill which is the subject of this action would serve a full menu of food and would be open from 11AM to 2AM Monday through Friday and from 11AM to 12AM on Saturday.
6. The Petitioner has agreed to certain stipulations on his permit and license, including:
A. prohibiting patrons from parking on the streets and on the neighbors’ property;
B. picking up litter;
C. prohibiting loitering, drinking, and loud music in the parking lot;
D. prohibiting live entertainment at the establishment; and
E. hiring security.
7. The Oaks Estates Civic Club represents the landowners that live in the Oaks Estates Subdivision. The proposed establishment would be at the entrance to the subdivision and within seven hundred and thirty two feet of a church as measured by the South Carolina Law Enforcement Division. Protestants’ main concerns include: loud noise; heavy traffic from the patrons entering and leaving the establishment; violence and drunk driving as a result of alcohol consumption on the property; the establishment’s close proximity to a church and patrons parking on the street. Protestants presented testimony regarding a murder that occurred at another Crazy D’s restaurant one mile from this establishment more than ten years ago. Protestants also offered testimony concerning the problems that they have had such as late openings and patrons parking on the street at the Weekend Pub which is a bar that is located at another entrance to the subdivision.
8. Although Protestants were very steadfast in their opposition to the proposed location, and they presented some specific reasons why this particular location should not be licensed, most of their concerns were conjectural. I find that the restrictions on the license and permit which the applicant has agreed to self-impose address most of Protestant’s concerns.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court has jurisdiction in this
matter pursuant to S.C. Code Ann. §61‑2‑260 (Supp. 2006).
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. The applicant has complied with all the provisions of S.C. Code Ann. §61‑4‑520
regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61‑4‑520(6).
4. Licenses and permits issued by the State for the sale of beer, wine, and liquor are
not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
5. 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 by itself to deny the application. See 45 Am.Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
6. As the trier of fact, an Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a beer and wine permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.
7. Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence adverse to the location may be considered. Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
8. The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer wine and liquor, did not object to the granting of a permit in this case. I find that this location is suitable for the on‑premises sale of beer, wine and liquor.
9. I find that this location shall be permitted and licensed with the following restrictions on the permit and license as the applicant agreed at the hearing:
A. that there shall be no parking on the streets;
B. that there shall be no littering;
C. that there shall be no loitering, drinking, or loud music in the parking lot;
D. that there shall be no live entertainment;
E. that the hours of operation shall be from 11AM to 2AM Monday through Friday and from 11AM to 12AM on Saturday; and
F. that security shall be hired.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on‑premises beer and wine permit and liquor by the drink license is GRANTED upon payment of any required fees and costs by the Petitioner to the Department.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premises beer and wine permit and liquor by the drink license to the Petitioner with the following Restrictions:
A. There shall be no parking on the streets;
B. There shall be no littering;
C. There shall be no loitering, drinking, or loud music in the parking lot;
D. There shall be no live entertainment;
E. The hours of operation shall be from 11AM to 2AM Monday through Friday and from 11AM to 12AM on Saturday;
F. Security shall be hired.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
July 6, 2007
Columbia, South Carolina
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