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 Rocky’s Pizza & Subs. After proper notice, a hearing was held on September 5, 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, the Respondent and the Protestant, I make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks an on-premises beer and wine permit for Rocky’s Pizza & Subs, located at 1306 Hwy. 90, Conway, South Carolina.
2. There are no schools in close proximity to the proposed location. Petitioner 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. William and Miranda Fuller are the owners of Rocky’s Pizza, which opened approximately six weeks ago. Miranda Fuller has lived off Hwy. 90 for five years and has been actively involved in the community during that time. Rocky’s Pizza is a family owned restaurant. Both William and Miranda Fuller work as many as fifteen hours a day at Rocky’s. Mrs. Fuller’s father is also heavily involved in the restaurant’s day to day operations. The testimony of John Zalinski, a local Conway attorney, established that the Fullers are of good moral character and have been actively involved in the community.
Rocky’s Pizza is located on Hwy. 90, across the street from a restaurant and among various residences. Rocky’s has parking on the premises for 43 cars, with an additional overflow lot to the rear of the location. Other businesses in the area with alcohol permits include a liquor store and convenience store with an off-premises beer and wine permit about a mile towards Conway. About three miles in the opposite direction, there is another convenience store with an off-premises beer and wine permit. The restaurant across the street, Hambones, does not have a beer and wine permit or liquor by the drink license.
Prior to opening this business, the Fullers had to obtain a zoning variance. The variance has eight restrictions, including the following; no alcohol can be served on Sunday, the restaurant must close at 9 p.m. during the week and at 10 p.m. on Friday and Saturday nights, it cannot be a biker bar, there can be no burnout pits or outside entertainment or music. Though the majority of business at Rocky’s thus far has come from take-out and delivery, the restaurant is equipped with enough chairs for 35 patrons to dine in the restaurant.
4. Amelia Wood testified on behalf of the protestant’s in this case. She stated that her main concern is that Hwy. 90 is an unsafe road and the consumption of alcohol at an establishment on Hwy. 90 may lead to more traffic accidents and fatalities. Though there is a curve in the road near the entrance to Rocky’s, the evidence did not establish that the curve in the roadway presents an unusual traffic hazard. Moreover, the speed limit is 55 miles per hour leading up to the curve. However, the speed limit is lowered to 45 miles per hour at the curve as well as on the straight portion of the road which runs in front of Rocky’s. Furthermore, Ms. Wood did not know of any accident that has occurred as a direct result of a vehicle pulling out of the parking lot of Rocky’s onto Hwy. 90.
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 Protestant 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.
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Ralph King Anderson III
Administrative Law Judge |
