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 Carolina
Thunder. After proper notice, a hearing was held on October 24, 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 Carolina Thunder, located at 9070
Highway 11, Campobello, South Carolina.
2. Petitioner
has been a resident of the State of South Carolina for approximately a year and
four months. 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. Kenneth
Parker is the owner of Carolina Thunder. Mr. Parker lives one mile from the
location. Carolina Thunder is located on Hwy. 11, across the street from a
Kangaroo Quick Mart and next door to a Lil’ Cricket convenience store, both of
which currently have off-premises beer and wine permits. Furthermore, this
location has been licensed to serve beer and wine at least two times in the
past ten years, the most recent being Taylor’s Rack & Company, which was
licensed until it closed in February of 2006. Mr. Parker intends for the
location to be a dance hall and music establishment, playing live country and
bluegrass music on Thursday, Friday and Saturday nights. He has gone through
the Planning and Review Board of Spartanburg County and is now ready to open.
4. The primary
issue for consideration was the protest to the permit.
Michael Owenby, pastor of the Jackson Memorial Baptist Church (JMBC), and
Stephen Wise, pastor of the Grace Baptist Church, both protested the granting
of an on-premises beer and wine permit to Petitioner.
Mr. Owenby is concerned
that patrons of the location will “come across the street” to his church,
loiter on the property and leave beer cans on the church premises.
Mr. Owenby is also worried about the safety of the children who attend JMBC’s
vacation bible school. However, this concern is attenuated by the distance to
the church. Jackson Memorial Baptist Church is located approximately 1,600
feet from Carolina Thunder. Furthermore, the two locations are separated by
I-26. Moreover, the evidence did not establish that the proposed location has
been the specific source of loitering or littering on the church premises.
Mr.
Wise expressed concern is that if Carolina Thunder is permitted to sell beer
and wine, there will be an increase in vagrancy on the church and school’s
property. He testified that patrons of Taylor’s Rack, the establishment that
formerly occupied the location in question, caused problems in the past at his
church, such as vandalism. Mr. Wise also expressed concern regarding the
safety of the students who attend Grace Christian School. According to Mr.
Wise, the children of the School are sometimes at the school as late as 11 p.m.
due to ball games and extracurricular activities.
5. Reverend
Owenby and Wise’s arguments appear to be based on a sincere concern for the community. However, as explained
below, in order to deny this permit and license, direct evidence of an adverse
impact on the community is necessary. Moreover, the
proposed location has been permitted to serve alcohol for at least the past ten
years while under different ownership. Therefore, the Protestants must show
that the location is less suitable for the sale of beer, wine or alcohol than
during the prior period of licensure. See Taylor v. Lewis,
261 S.C. 168, 198 S.E.2d 801 (1973).
Here, the evidence did
not establish that the proposed location is less suitable now than during the prior
period of licensure. In fact, neither Mr. Owenby nor Mr. Wise established that
any change in the community had taken place since the location was last
permitted. There is also no evidence that the previous permit was ever challenged
after it was issued or that the permittee was disciplined for any infraction.
More specifically, with
respect to Mr. Owenby’s testimony, the Church’s concerns are attenuated by the
distance from the proposed location to the church. Jackson Memorial Baptist Church is located approximately 1,600 feet from Carolina Thunder. More
importantly, the two locations are separated by I-26. Moreover, the evidence
did not establish that the proposed location has been a specific source
of loitering or littering on the church premises. Finally, no evidence was
presented to show that the hours of operation of Carolina Thunder will even be
the same as those of JMBC’s vacation bible school.
As to Mr. Wise’s
testimony, no evidence, other than hearsay, was offered to demonstrate that the
incidents mentioned by Mr. Wise involved patrons of Taylor’s Rack. Moreover,
his concerns are also attenuated by the distance to the church and school. The
church and school are located two miles from Carolina Thunder. That distance
greatly reduces any impact this location could have to the church or school,
themselves.
Therefore,
I find that the proposed location is 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 (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, 261 S.C. 168. 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
November 7, 2007
Columbia, South Carolina
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