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

Kathy Totherow vs. South Carolina Department of Revenue

South Carolina Department of Revenue

Kathy Totherow, d/b/a Down Yonder Bar & Grill

South Carolina Department of Revenue

For the Petitioner: Michael F. Gillen, Esquire
For the Respondent: Carol I. McMahan, Esquire
For the Protestants: pro se


This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2006), 61-2-260 (Supp. 2006), and 61-6-1825 (Supp. 2006). Kathy Totherow, d/b/a Down Yonder Bar & Grill (“Petitioner”), seeks a restaurant liquor by the drink license (“license”) for its location at 4390 McConnells Highway, Rock Hill, South Carolina (“location”). Protests to the application were filed with the South Carolina Department of Revenue (“Department”). Because of the protests, the hearing was required. A hearing in this matter was held on August 28, 2007 at the offices of the ALC in Columbia, South Carolina. Both parties and Protestants Shawn and Karianne Cole appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for a restaurant liquor by the drink license should be granted with restrictions. FINDINGS OF FACT Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence: 1. Petitioner seeks a restaurant liquor by the drink license for her location at 4390 McConnells Highway, Rock Hill, York County, South Carolina; it is located outside the city limits. Petitioner is the sole owner of the location. 2. Petitioner is over the age of twenty-one (21) and of good moral character. She is a legal resident of the State of South Carolina and has maintained her principal place of abode in this state for at least thirty (30) days prior to making this application. Additionally, she has never had a permit or license to sell beer, wine, or alcoholic beverages suspended or revoked. 3. Notice of the application was lawfully posted at the location and in a newspaper of general circulation. 4. Petitioner has operated the location as a bar and grill for approximately three years and eight months. Its hours of operation are from 3:00 p.m. to 2:00 a.m., Tuesday through Friday, and from 2:00 p.m. to 12:00 a.m. on Saturday. The location is closed on Sunday and Monday. 5. The location is currently permitted by the Department for the sale of beer and wine for on-premises consumption. Petitioner has not had any alcohol related violations at the location. 6. There is a bar inside the building at the location and seating for at least 40 people. Also, there are two pool tables, a bowling machine, a foosball table, an internet jukebox, and a karaoke machine inside. Occasionally, solo musicians perform live there. Also, patrons sometimes play horseshoes outside behind the building at the location. 7. The kitchen inside the building is fully equipped and is open during all hours of operation. Petitioner serves food items there that include chicken strips, wings, pizza, corn dogs, french fries, onion rings, and crab rangoon. 8. The location is in a rural area at the corner of McConnells Highway and Williamson Road. There are no churches, schools or playgrounds within 500 feet of the location. However, several residences are nearby. 9. There are two entrances to the location, one facing McConnells Highway and one facing Williamson Road. The rear portion of the property at the location is primarily enclosed by a privacy fence. 10. The gravel parking lot at the location, located along the side and front of the building, can accommodate approximately seventeen (17) cars. Patrons may enter the parking lot from either McConnells Highway or Williamson Road. There has been one occasion where parking at the location was inadequate and patrons parked without permission on neighboring property. 11. Petitioner is employed full-time by an industrial supply warehouse in Matthews, North Carolina, where she works Monday through Friday from 7:30 a.m. to 4:30 p.m. She goes to the location each day that it is open after she arrives home from work. She lives approximately four (4) miles from the location. Petitioner’s boyfriend, Steven Gardner, and a friend, Lynn Carney, assist her with operating the location while she is at work. Petitioner does not have any other employees at the location. 12. Petitioner currently leases the building. If the license is granted, she plans to purchase the property, make improvements to it, and expand the parking area. 13. Since the mid 1990’s, several other businesses that have been permitted and licensed for the sale of beer, wine and/or liquor have operated at the location. There is another business approximately ½ mile from the location that is permitted and licensed for the sale of beer, wine and liquor. 14. Petitioner and Mr. Gardner patrol the outside of the location at least once an hour while open for business. 15. There have been at least three (3) incidents at the location in the past 3 ½ years which required a response from law enforcement. Those incidents resulted from disagreements between patrons and took place in the parking lot after the location had closed. 16. Litter outside the location is collected on a daily basis. 17. There is adequate lighting at the location. 18. Shawn and Karianne Cole filed a protest to the application and testified at the hearing. The Coles live across Williamson Road from the location and have an eighteen (18) month old daughter. Mr. and Mrs. Cole expressed concerns due to noise emanating from the location. They have been awakened at night by loud music at the location and by fights and cursing occurring in the parking area, one fight carrying over into their yard. Also, several intoxication patrons from the location have come onto their property several times. In addition, while Petitioner was hosting a benefit at the location, patrons parked without permission on and along the Cole’s property. 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. 2. S.C. Code Ann. § 61-2-260 (Supp. 2006) grants the Administrative Law Court the responsibility to determine contested cases matters governing alcoholic beverages, including beer, wine and liquor. 3. S.C. Code Ann. § 61-6-1820 (Supp. 2006) sets forth the requirements for the issuance of restaurant liquor by the drink license. Section 61-6-1820(1) provides that an applicant may receive a license upon the finding that “[t]he applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.” 4. Further, S.C. Code Ann. § 61-6-20 requires that a restaurant “have facilities for seating not less than forty persons simultaneously at tables for the service of meals,” and that it have a Grade A retail establishment food permit prior to issuance of a license. 5. S.C. Code Ann. § 61-6-120 (Supp. 2006) provides that a liquor license shall not be issued to a place of business if: the place of business is…within five hundred feet of any church, school, or playground situated outside of a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along a public thoroughfare from the point of the grounds in use as part of such church, school, or playground… 23 S.C. Code Ann. Regs. 7-303 (Supp. 2006) clarifies how distances from the location to schools, churches, and playgrounds are measured. There are no churches, school, or playgrounds within five hundred feet of the location. 6. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 7. 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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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 Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996). 8. 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 181 (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 any adverse effect the proposed location will have on the community. Palmer, supra. 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, in considering the suitability of a location, it is relevant to consider 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. Id. 10. Unless there is 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); See 48 C.J.S. Intoxicating Liquors § 166 (2004). 11. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the State’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). 12. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2006) authorizing the imposition of restrictions on permits, provides: Any written stipulation and/or agreement which is voluntarily entered into by an applicant for a permit or license between the applicant and the Department, if accepted by the Department, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the permit or license and shall have the same effect as any and all laws and any and all other regulations pertaining to the permit or license. Knowing violation of the terms of the stipulation or agreement shall constitute sufficient grounds to revoke said license. 13. The Department may seek revocation or suspension of permits for the sale of beer and wine “on its own initiative or on complaint signed and sworn to by two or more freeholders resident for the preceding six months in the community in which the licensed premises are located or by a local peace officer, all of whom are charged with the duty of reporting immediately to the department a violation of the provisions of Section 61 4 580….” S.C. Code Ann. § 61-4-590 (Supp. 2006). The Department may also seek to suspend or revoke a liquor by the drink license pursuant to S.C. Code Ann. § 61-6-1830 (Supp. 2006). 14. Petitioner currently holds an on-premises beer and wine permit at the location and has not had any alcohol related violations. Further, the location has been permitted and licensed for the sale of beer, wine and alcoholic beverages in the past. There is another establishment within ½ mile of the location that is permitted and licensed for the sale of beer, wine and liquor also. However, there have been several fighting incidents at the location since Petitioner began operating a business there over three years ago which have required a response by law enforcement; those incidents occurred after hours in the parking lot at the location. Although there are no churches, schools or playgrounds within 500 feet of the location, there are several residences close to the location and their residents have experienced some disturbances resulting from activities at the location, including problems with noise, fights, and parking. After listening to the testimony of the Protestants, the Court is concerned about the rights of those individuals, and other nearby residents, to live in their homes in a safe and quiet environment. Therefore, as a condition for issuance of the license, Petitioner must prevent any actions or activities at the location which would or could deny the neighbors of their right to live comfortably, securely, and without objectionable noise in the privacy of their homes. Accordingly, numerous restrictions must be placed on the license to ensure that Protestants and citizens do not experience any future problems or disturbances. It appears that Petitioner meets all statutory requirements for the issuance of a restaurant liquor by the drink license. However, before the license is granted, a final SLED inspection must be conducted to confirm that Petitioner meets all of the statutory and regulatory requirements for a restaurant liquor by the drink license. In consideration of the above, I conclude that the location would not have an adverse impact on the surrounding community and is suitable for a restaurant liquor by the drink license as long as it conforms to the restrictions set forth below. ORDER Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that the application for a restaurant liquor by the drink license submitted by Kathy Totherow, d/b/a Down Yonder Bar & Grill for its location at 4390 McConnells Highway, Rock Hill, South Carolina is GRANTED contingent upon Petitioner signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below: RESTRICTIONS 1. Petitioner’s hours of operation at the location shall be between 3:00 p.m. and 12:00 a.m. (midnight) Tuesday through Friday and 2:00 p.m. until 12:00 a.m. on Saturday. The location will be closed on Sunday and Monday. 2. Petitioner and her employees will, at all times, prohibit loitering and the consumption of beer, wine and alcoholic beverages outside the building at the location. Consumption of beer, wine, and alcoholic beverages is limited solely to the indoor portion of the building at licensed location. 3. Live bands will not be permitted at the location. 4. At all times of operation, all windows and doors at the location must remain closed. Furthermore, no music, by bands, speakers, or otherwise, including karaoke, is permitted to be played on the outside of the building at the location. Petitioner and its employees will not allow excessive noise to emanate from the location. After 10:00 p.m., any noise that is noticeably audible within any local residence with closed doors and windows shall be considered excessive. For the purposes of this restriction, any conviction for the violation of the county noise ordinance will be considered conclusive evidence of a violation of this provision. 5. In addition to music, no other activities sponsored, authorized or acquiesced to by Petitioner, will be permitted on the outside of the location. 6. Petitioner will ensure that litter on the outside of the premises is collected and removed daily. 7. Petitioner must employee at least one person to continuously patrol the exterior of the building at the location during all hours of operation. 8. Parking is permitted only at designated parking areas on the location’s property. No parking is allowed along the side of the public road at the location. Further, no parking is allowed on or in front of any neighboring properties without express permission of the owner. IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the permit and license and may result in a fine, suspension, or revocation of the permit and license. AND IT IS SO ORDERED. __________________________________ September 4, 2007 Marvin F. Kittrell Columbia, South Carolina Chief Administrative Law Judge Jean Weaver also appeared at the hearing wishing to testify as a Protestant in this matter. However, the Department has no record of her having filed a protest to the application and counsel for Petitioner objected to her testimony. Accordingly, she was not permitted to testify in opposition to the application. At the time of the last inspection by the South Carolina Law Enforcement Division (SLED), Petitioner did not have adequate seating. However, she has since installed enough seating for at least forty (40) people.


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