ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2006), and S.C. Code Ann. §§ 61-2-260 & 61-6-185 (Supp. 2006) for a contested case hearing. Petitioner is seeking an on-premises beer and wine permit for Zappo’s Pizza. After proper notice, a hearing was held on October 4, 2007 at the offices of the ALC in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of proof upon the Petitioner and the Respondents, I make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks an on-premises beer and wine permit for Zappo’s Pizza, located at 708-A King Street, Charleston, South Carolina.
2. Petitioner has been a resident of the State of South Carolina for thirty-four years. The testimony established that she was of good moral character. She also has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
3. Renee Dolin is the owner of Zappos’ Pizza, which has been open for approximately one year. Zappo’s is a family owned and operated restaurant. Both Renee Dolin and her husband, Zane Powell, work at and manage the restaurant. Moreover, Ms. Dolin and her husband live two doors down from Zappo’s, at 696 King Street.
Zappo’s currently has seating for approximately twenty customers to dine in the restaurant. They also do a large take-out and delivery business. There is no outdoor seating or sound system, only a small boom box inside the restaurant. Mr. Powell does a large majority of the pizza deliveries, leaving Mrs. Dolin to run the business. Zappo’s has one other employee, Frank McGuffin, whose duties consist mostly of baking the pizzas. There is a parking lot with adequate space adjacent to the building for customers to use.
4. Doris Haynes protested the granting of an on-premise permit to Zappo’s. Ms. Haynes is the pastor of a church that is located across the street from this location. She testified that she was concerned about alcohol being sold in such close proximity to her church. She believes that the area is not suitable because of the problems with drugs and prostitution. She also testified that she did not want the underprivileged youth in the area to be presented with a choice to drink alcohol. Lastly, Pastor Haynes believes that the community would be better served with an establishment that did not sell alcohol.
Pastor Haynes’s arguments appear to be based on a sincere concern for the community. However, in order to deny this permit, direct evidence of an adverse impact on the community is necessary. To the contrary, the evidence did not establish that this location would adversely impact the community. The Petitioner in this case is clearly operating a restaurant and is not seeking a permit to operate as a bar. Furthermore, though the church is only a few yards from Zappo’s, the existing character of the community would not be changed by granting the permit to Petitioner. Zappo’s is located in the city of Charleston in an area that is both residential and commercial. There are restaurants, schools, churches and a convenience store all within walking distance. In fact, there are two liquor stores located within a few tenths of a mile in either direction. Though there may be instances of crime in the area surrounding the proposed location, the evidence did not establish that granting the permit to a business that sells pizzas would exacerbate crime in the area. Therefore, I find that Petitioner's proposed location is suitable for on-premise beer and wine permit. Nevertheless, the determination of suitability is solely limited to the operation of the location as a restaurant. Any operation of this business outside of these parameters would not be supported by the findings in this Decision.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 2006) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. S.C. Code Ann. § 61-2-260 (Supp. 2006) also grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. § 61-4-520 (Supp. 2006) sets forth the requirements for the issuance of a beer and wine permit. Section 61-4-520(5) provides that the location of the proposed place of business must be a proper one. Furthermore, Section 61-4-520(6) provides that in making that determination, the Department, and thus the ALC, “may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches.”
3. Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine 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 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts is a significant consideration. Smith v. Pratt, 258 S.C. 504; Taylor v. Lewis, 261 S.C. 168.
“A liquor license or permit may also 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 § 168 at 366 (2004). Nevertheless, if the statutory criteria are satisfied, a permit or license should not be denied upon these grounds without sufficient evidence of an adverse impact on the community. Moreover, the fact that a person objects to the issuance of a permit or license does not establish a sufficient reason by itself to deny the application. See 48 C.J.S. Intoxicating Liquors § 166 (2004).
Therefore, based upon the evidence presented, Petitioner meets the statutory requirements for holding an on-premises beer and wine permit at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Department resume processing Petitioner’s application for an on-premises beer and wine permit.
AND IT IS SO ORDERED.
____________________________________
Ralph King Anderson III
Administrative Law Judge
October 11, 2007
Columbia, South Carolina
|
