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. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case
hearing. The Petitioner, “21,” seeks an on-premise beer and wine permit for its location situated at
714 US Hwy. 21 South, Ridgeway, South Carolina. Respondent South Carolina Department of
Revenue (Department) filed a Motion to be Excused setting forth that but for the protests received
from two citizens, this permit would have been issued. That Motion was granted by my Order dated
August 27, 2004. A hearing was held before me on September 28, 2004, at the offices of the
Administrative Law Court (ALC or Court) 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 parties and the Protestants,
I make the following Findings of Fact by a preponderance of the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Protestants, and the Department.
2.The Petitioner seeks an on-premise beer and wine permit for “21,” located at 714 US
Hwy. 21 South, Ridgeway, South Carolina.
3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2003) concerning
the residency and age of the Petitioner are properly established. Furthermore, the Petitioner 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.
4.The proposed location is not unreasonably close to any school or playground.
However, Lebanon Presbyterian Church is located approximately one hundred twenty-six (126') feet
across Highway 21 from the proposed location.
5.Sandra Lemons, the owner of the location, has no criminal record. However, Bobby
Belton, who will be running and managing “21,” testified that he has been convicted of passing
fraudulent checks and misuse of a credit card in the past.
6.“21” is a sports bar/pool room located on Highway 21 South, a two-lane roadway.
The site is located in Fairfield County outside the city limits of Ridgeway. It is situated adjacent to
a Shell Station. Between the Shell Station and the proposed location is an empty drive-way/parking
lot area. The parking lot is used as a frequent traffic cut-through for local traffic and school buses.
Furthermore, patrons of the Shell Station loiter in the parking lot area and consume alcohol.
Lebanon Presbyterian Church is also located across the street from the proposed location. The owner
of the Shell Station and Lebanon Presbyterian Church are protesting the issuance of this beer and
wine permit.
The proposed location was previously permitted for the sale of beer and wine approximately
eighteen (18) years ago. Since that time, this location has housed a meat market or has remained
dormant. In the past four (4) months, “21” has operated at the proposed location under a temporary
permit. Mr. Belton testified that the business is currently being operated as a sports bar with pool
tables and televisions. It generally opens about 6:00 to 7:00 p.m. and closes about 1:00 a.m. Mr.
Belton set forth that his patrons drink in the location and that he does not allow them outside with
alcohol. He also stipulated that he will not have loud music and that the only source of music will
be a compact disc player and not a jukebox.
Though Mr. Belton set forth that his patrons drink only in the location, there has always been
loitering in this general area, even when the proposed location was being run as a meat market.
Those problems have arisen, in part, from the nearby Shell Station which allows its customers to
purchase alcohol and then loiter in the adjacent empty area and consume that alcohol. The loitering
often results in raucous behavior and then littering. Mr. Belton, himself, has had to frequently pick
up the trash left on the adjacent open area by patrons of the Shell Station because the Shell Station
will not help pick up refuse. The loiterers also publicly urinate around the Shell Station.
Since the opening of “21,” the loitering, yelling and profanity coming from the area between
the proposed location and the Shell Station has considerably worsened. Moreover, when “21” has
been open, the yelling and profanity coming from its patrons has been clearly audible during church
services and other church activities. Consequently, Mr. Al Hanna, the “Clerk in Session” of Lebanon
Presbyterian Church, believes the location will be a detractor from activities at the church. He
testified that there is much more activity at the church now than when the location was previously
permitted and that church membership has grown including a lot more youth involvement. The
church also hosts several different kinds of meetings during the week including womens’ auxiliary,
girl scouts and teen meetings, along with regular church business. Mr. Hanna further cited one
particular event, the church’s Labor Day Revival, that was overshadowed by the profanity and noise
coming from the vicinity of the proposed location.
Unfortunately, the problems with loitering are apparently attributable, in part, to the operation
of the Shell Station. Ms. Mattox, the operator of that location, acknowledged that she allows
individuals to purchase beer and/or wine from the Shell Station and to remain in the general vicinity.
However, since the opening of “21,” the loitering in the area has increased with an ensuing accretion
of drinking and yelling in the vacant parking area between the Shell Station and the proposed
location. Though to alleviate the concerns of the Church, Mr. Belton testified that his establishment
would be willing to cease operations during funerals and weddings, he also set forth that he would
need advance notice of such activities. Furthermore, he did not believe the location needed to be shut
down during all church activities.
7.All in all, it appears that the loitering situation was present, albeit in a more peaceful
setting, prior to the reopening of this club. Nevertheless, the evidence reflects that “21” has and will
change the integrity of the vicinity and result in an overall adverse impact on the community.
Therefore, I find that the Petitioner’s proposed location is not suitable for an on-premise beer and
wine permit.
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 (1986 & Supp. 2003) grants jurisdiction to the
Administrative Law Court to hear contested cases under the Administrative Procedures Act.
Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Court the responsibilities to
determine contested matters governing alcoholic beverages, beer and wine.
2.A beer and wine permit is neither a contract nor a property right. It is, rather, a
privilege granted in the exercise of the State's police power “to do what otherwise would be unlawful
to do. . . .” Feldman v. South Carolina Tax Comm’n, 203 S.C. 49, 26 S.E. 2d 22 (1943). S.C. Code
Ann. §§ 61-4-520 and 61-4-540 (Supp. 2003) set forth the requirements for the issuance of a beer
and wine permit. In particular, Section 61-4-520 (6) vests the Administrative Law Court, as the trier
of fact, with the authority to determine if the proposed place of the applicant’s business is a “proper”
one. Although “proper location” is not statutorily defined, in making that determination, the
Administrative Law Court may consider any evidence that is adverse to the community. Kearney
v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In other words, the Court’s 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 on the
community” within which it is to be located. Kearney at 337. Additionally, it is 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, S.C. Code Ann. § 61-4-520(7) (Supp. 2003) also provides that the proximity
of a proposed location to a church may be a consideration in determining whether to grant a beer and
wine permit. In Byers v. South Carolina Alcoholic Beverage Control Comm'n, 305 S.C. 243, 246,
407 S.E.2d 653, 655 (1991), the South Carolina Supreme Court held based upon the language found
in Section 61-4-520(7) that “. . . proximity of a location to a church, school or residence is a proper
ground, by itself, on which the Commission may find the location to be unsuitable and deny a permit
for the sale of beer or wine at that location.”
4.I find that the Petitioner failed to meet the requirements for holding an on-premise 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 Petitioner's application for an on-premise beer and wine permit be
denied.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
October 21, 2004
Columbia, South Carolina |
