SC Administrative Law Court Decisions

This matter comes before the South Carolina Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2005 & 2007), 61-2-260 (Supp. 2007), 61-4-525 (Supp. 2007) and 61-6-1825 (Supp. 2007). General Elliott Inn, Inc., d/b/a General Elliott Inn (“Petitioner”) seeks an on-premises beer and wine permit and restaurant liquor by the drink license for its location at 939 New Bridge Road, Aiken, 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.

Pursuant to notice to the parties, a hearing in this matter was held on February 8, 2008 at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and two Protestants appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for an on-premises beer and wine permit and restaurant liquor by the drink license should be granted with several 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 an on-premises beer and wine permit and restaurant liquor by the drink license for its location at 939 New Bridge Road, Aiken County, South Carolina. It is not located inside the city limits.

2. General Elliott Inn, Inc., d/b/a General Elliott Inn is a corporation in good standing with the South Carolina Secretary of State. It has a reputation for peace and good order in the community. Kayarlene General (“Ms. General”) is the sole member of General Elliott Inn, Inc., d/b/a General Elliott Inn.

3. Ms. General is the General Manager of the location and is the designated agent for the permit and license. As General Manager, she will be responsible for the day-to-day operations of the location and will be present there during operating hours. Ms. General is over the age of twenty-one (21) and of good moral character.[1] 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.[2] Ms. General has never held a beer and wine permit or alcohol license in the State of South Carolina. She has previous restaurant experience, including experience in alcohol sales, as an owner/manager of a restaurant located in Hibbing, Minnesota. Ms. General operated this business for approximately fourteen years. Ms. General did not have any alcohol-related violations during the time she operated this restaurant.

4. Notice of the application was lawfully posted at the location and in a newspaper of general circulation.

5. The proposed location will operate as a Bed and Breakfast Inn (“Inn”) and restaurant that will be primarily and substantially engaged in the preparation and serving of meals. The location consists of the main house and a cottage. The main house has three guests rooms: one guest room has a private bath and the additional guest rooms share a bathroom. Ms. General does not allow guests who have children or pets to rent rooms within the main house. The cottage consists of one bedroom and one bathroom and is generally rented to families with children and/or pets.

6. The restaurant’s proposed hours of operation are from 6:00 p.m. to 8:30 p.m. Friday and Saturday only. The Inn’s patrons as well as the general public may dine at the restaurant. Breakfast is served each morning to the Inn’s patrons. Light snacks and drinks will also be available daily to the Inn’s patrons during the late morning and early afternoon.

7. The proposed location has an extensive menu, which includes appetizers, salads, soups, seafood, chicken, and beef dishes, and desserts. Ms. General prepares all of the food served at the location. Her husband, Steven Elliott (“Mr. Elliott”), assists Ms. General with various duties at the Inn such as serving food and drinks and cleaning within the restaurant and Inn. Mr. Elliott does not receive monetary compensation for his services at the location.

8. The location received a Class A inspection rating score from the South Carolina Department of Health and Environmental Control. The restaurant is equipped with a commercial kitchen, accommodates approximately ten to forty patrons each weekend, and maintains a food inventory to accommodate approximately fifty patrons at any given time. There is seating for approximately fifty (50) people inside.

9. The proposed location was formerly a residence. Ms. General has completed extensive renovations of the location, which included constructing concrete walkways, installing a commercial well at the approximate expense of thirty thousand dollars, converting the residence into an operating Bed and Breakfast, and landscaping the entire premises. There is also a bar inside the location; however, Ms. General does not plan on placing bar stools at the bar as she intends to create a “service-only” bar.

10. The location does not have a sound system installed inside or outside the premises.

11. The location is available to the general public to be rented for special occasions such as weddings, showers, and parties. Individuals renting the premises for these special events are permitted by Ms. General to hire a dee-jay or use private sound system equipment during the special event.

12. The parking area at the location can accommodate approximately seventy (70) cars.

13. Ms. General will provide any future employees with on-the-job training and instructions on alcohol sales.

14. It is Petitioner’s policy that reasonable measures be taken to prevent any intoxicated person from leaving the restaurant and driving a motor vehicle. These measures include calling for transportation to drive the individual home, or, if necessary, calling law enforcement.

15. The proposed location is situated in a primarily residential area. There are approximately fifteen (15) residences within a mile of the location. Directly across the street from the location and fronting on New Bridge Road is the New Bridge Polo & Country Club (“the Club”). The Club is an eight hundred (800) acre development that includes five (5) polo fields, a private-gated residential community, horse pastures and stables, tennis courts, and a swimming pool. A clubhouse is located adjacent to Polo field #1 and within the clubhouse is a bar and restaurant facility. The Club is busiest during polo seasons, which run from approximately August to November and from approximately April to May. During the season, polo matches typically occur on Friday, Saturday, and Sunday during the daylight hours. The Club may also be rented to the general public for special events such as weddings and local charity events.

16. There are no churches, schools, or playgrounds within five hundred (500) feet of the location. The closest church, Clearwater Branch Baptist Church, is over nine hundred (900) feet away.

17. David Simpson, who resides approximately one mile from the location, filed a protest to the application. Among his concerns are the events held at night at the location, and the proximity of the location to neighboring residences. Mr. Simpson also expressed concerns about the possible impact alcohol may have on the traffic and drivers in the area. In support of this concern, he cited to the general layout of New Bridge Road and Crooked Creek Drive, the two roads adjacent to the location. Specifically, because these are narrow and winding secondary roads, he is concerned about drivers potentially driving on these roads under the influence and endangering others.

18. Milledge Austin, who resides behind the location and shares a common property boundary line with the location, filed a protest to the application. Mr. Austin expressed concerns about the safety of the neighborhood and its residents if the location is granted the requested permit and license. Mr. Austin is primarily concerned with potential drunk drivers driving within his neighborhood. As support for his concern, Mr. Austin informed the Court that he has been personally affected by the decision of an individual who chose to drive after consuming alcohol. Specifically, Mr. Austin’s mother was killed in a traffic accident involving a drunk driver. Because of this event, Mr. Austin is concerned for the safety of his family and neighbors who travel along Crooked Creek Road and New Bridge Road.

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. 2007) 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. 2007) 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. § 61-4-520 (Supp. 2007) sets forth the requirements for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2007) 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.”

5. S.C. Code Ann. § 61-6-120 (Supp. 2007) 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. 2007) clarifies how distances from the location to schools, churches, and playgrounds are measured.

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.

9. 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 48 C.J.S. Intoxicating Liquors § 166 (2004).

10. 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 ALC, 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).

11. 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 § 61‑4‑580…” S.C. Code Ann. § 61-4-590 (Supp. 2007). 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. 2007).

12. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2007) 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. After considering all of the above, I find that the location is suitable for the issuance of an on-premises beer and wine permit and restaurant liquor by the drink license contingent upon the restrictions set forth below. It is located directly across from the New Bridge Polo & Country Club which contains a bar and restaurant. In addition, no churches, schools, or playgrounds are within five hundred (500) feet of the location. While there are some residences located in the surrounding areas, I do not find the location to be unreasonably close to any of the residences. The location is currently operating as a bed and breakfast which welcomes families and children. Ms. General has no intentions of operating the location as a traditional bar, but only as a restaurant that offers cocktails, beer, and wine to its customers to enjoy while dining.

Although the Court is mindful of the Protestants’ concerns, those presented do not provide a sufficient basis on which to deny the permit and license. The Protestants did not present any credible evidence that this location, if permitted and licensed, would have any direct adverse impact on the community. Ms. General has previously operated an establishment that was permitted and licensed for the sale of beer, wine, and liquor by the drink. During this time of operation, Ms. General did not receive any alcohol-related violations. In addition, Ms. General has policies in effect to prevent any patron who becomes intoxicated from leaving the location and driving to his or her destination. Therefore, I find that there is sufficient evidence in the Record to show that the proposed location is suitable, contingent upon the restrictions set forth below, and it would not have an adverse impact on the community. Furthermore, Petitioner meets all statutory criteria for holding an on-premises beer and wine permit and restaurant liquor by the drink license. Accordingly, I conclude that Petitioner’s application for an on-premises beer and wine permit and restaurant liquor by the drink license should be granted as long as it conforms to the restriction set forth below.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the application for an on-premises beer and wine permit and restaurant liquor by the drink license submitted by General Elliott Inn, Inc., d/b/a General Elliott Inn for its location at 939 New Bridge Road, Aiken, 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.      The bar within the restaurant shall remain a “service only” bar. Petitioner is prohibited from placing bar stools or any other type of seating at the bar within the restaurant.

2.      Petitioner, or anyone using the premises for special events, is prohibited from serving alcohol on the premises after 10:00 p.m.

3.      Petitioner, or anyone using the premises for special events, is prohibited from playing music, live or through a speaker system, after 10:00 p.m.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the permit and may result in a fine, suspension, or revocation of the permit.

AND IT IS SO ORDERED.

_________________________________

February 15, 2008 Marvin F. Kittrell

Columbia, South Carolina Chief Administrative Law Judge