ORDERS:
ORDER
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, Walter Dawkins, d/b/a Big Dog’s Bar & Grill (“Petitioner” or “Big Dog’s”), applied for an on-premises beer and wine permit pursuant to §§ 61-4-500 et seq. and for a liquor by the drink license pursuant to §§ 61-6-1600 et seq. for the location at 145 Williams Street in Spartanburg, South Carolina 29301. Reverend Edwin H. Bolton, Reverend Arnold Gahagan, and Shirley A. Putnam (“Protestants”) filed written protests to the Petitioner’s application. Respondent South Carolina Department of Revenue (“Department”) denied the application pursuant to § 61-4-525 and § 61-6-1825 due to the receipt of the Protestants’ valid public protests. The Department stated in the Final Agency Determination that it would have granted the permit and license but for the receipt of the public protests.
After notice to the parties and the Protestants, the court held a hearing on this matter on August 22, 2007. Both parties and the Protestants 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. §§ 61-4-520(5)-(6), 61-6-1820; 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 Protestants.
The Petitioner seeks a permit for the retail sale of beer and wine for on-premises consumption and a license to sell liquor by the drink for the location at 145 Williams Street in Spartanburg, South Carolina 29301. The proposed location is outside the city limits of Spartanburg. Notice of the application was lawfully posted at the location and was published in a newspaper of general circulation.
Mr. Walter Dawkins (“Dawkins”) is sole owner of the business seeking the requested permit and license. Dawkins is over the age of twenty-one. He has never had a permit or license to sell beer, wine, or liquor revoked. He has no criminal record and does not owe the state or federal government any delinquent taxes, penalties, or interest.
The Petitioner seeks the requested permit and license for Big Dog’s Bar and Grill, which has operated without incident at the proposed location since 2002. From 2002 until January 2007, Big Dog’s was jointly owned by Dawkins and business partner. During that time, it was licensed to sell beer, wine, and liquor. In January 2007, Dawkins’s business partner left the business, requiring Dawkins to submit the application at issue due to the change in ownership. See § 61-2-140(B).
Big Dog’s is located outside of the city limits of Spartanburg on Williams Street, which has a history of crime including problems with prostitution, drugs, gang activity, and shootings. While there are two churches in the area of the proposed location, neither are within 500 feet of the proposed location.
The proposed location is a bar that serves short order fare, such as hot dogs, hamburgers, and chicken fingers. Big Dog’s is open Monday through Thursday from around 11:00 a.m. until approximately 9:00 p.m. and Friday and Saturday from 11:00 a.m. until between 11:00 p.m. and 2:00 a.m. It is closed on Sundays. The clientele is generally over the age of twenty-two consisting of working middle-class men and woman as well as some professionals.
Dawkins testified concerning the operation of the business. The evidence reveals no problems related to the sale of beer, wine, or liquor since Big Dog’s opened in 2002. Dawkins stated that he has never received any complaints and that the sheriff’s office has never been called to the proposed location for any criminal activity. When sheriff’s deputies have entered the establishment in the past on routine patrols, they have departed without detecting any violations of the law or issuing any citations. Big Dog’s employs security on busy nights and Dawkins does not permit people who are intoxicated or involved in illegal activity to enter the business. He further testified that he has never had any problems with the surrounding businesses or residents.
The Protestants testified in opposition to the application. Their concerns fell into two general categories. The first category is a concern over the sale of alcohol in general founded in the belief that the economic and social harms from alcohol outweigh any benefits that may be derived from its sale or consumption. The second category is a concern that granting this license will only worsen the danger and crime in the surrounding area. Specifically, the Protestants stated that the community around the proposed location is riddled with crime and although it is starting to improve, this is an inappropriate location for alcohol sales. The Protestants could not attribute any of the crime in the area specifically to the Petitioner’s business. At least one Protestant testified that he was unaware that Big Dog’s has been licensed to sell alcohol for several years.
LAW
Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.
1. Jurisdiction and Review
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 61-4-520 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 §§ 61-4-520(5)-(6). Additionally, § 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, either a beer and wine permit or a liquor 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 § 168 at 366 (2004).
Other factors may be considered when determining whether a location is proper. For example, consideration can be given to the impact the issuance of the permit or 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 permit or license 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 § 166 (2004). Moreover, the denial of a permit or 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. No evidence was presented of law enforcement problems either at the proposed location or as a result of the operation of the proposed location. Rather, Dawkins’s uncontroverted testimony was that his business has never been a source of problems for law enforcement.
The court finds it compelling that the proposed location has held a license to sell beer, wine, and liquor for over four years with no problems that would contraindicate licensure. Although the Protestants expressed a concern over the criminal activity in the area, they offered no evidence that the proposed location has been the source of those problems or has increased the general crime in the area. The undisputed evidence showed that, although the neighborhood suffers from serious criminal activity, that activity cannot be attributed to the proposed location. Further, the Protestants’ remaining concerns over the general social harms they attribute to alcohol 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 an on-premises beer and wine permit and liquor by the drink license. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an on-premises beer and wine permit and liquor by the drink license for the premises located at 145 Williams Street in Spartanburg, South Carolina 29301 in accordance with § 61-2-80, § 61-4-540, and § 61-6-1820.
IT IS SO ORDERED.
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PAIGE J. GOSSETT
Administrative Law Judge |
