SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2001), § 61-4-520 (Supp. 2001), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001) for a contested case hearing. Medard Bosky seeks an on-premise beer and wine permit for The Low Rider Saloon, a location previously licensed, that he is currently renovating. ⁽¹⁾ On November 15, 2002, Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protests of concerned citizens, the Department would have found this location to be suitable. This motion was granted by my Order dated December 20, 2002. A hearing was held in this matter on January 29, 2003, at the offices of the Division in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner, the Respondent, and the Protestants, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Respondent, and the Protestants.

2. The Petitioner seeks an on-premise beer and wine permit for The Low Rider Saloon located in Lexington County at 4088 Fish Hatchery Road, Gaston, South Carolina. Mr. Bosky is leasing the location and is currently making aesthetic improvements to the building. The proposed location is not located within the city limits of Gaston. The Petitioner testified that, if approved, the location would be a local sports bar with pool tables and other bar games, such as pin ball and video games. The location would also have televisions to show sporting events. Furthermore, the Petitioner set forth that a jukebox would be the only means of music at the location and that disc jockeys and live music would not be allowed. Finally, the location would serve bar snacks, such as pre-packaged foods, and any prepared hot meals would require an inspection and subsequent issuance of a license by the Department of Health and Environmental Control.

3. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001) concerning the residency and age of the applicant are properly established. Furthermore, Mr. Bosky has not had a permit or license revoked within the last two (2) years and public notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The applicant has no criminal record and is of sufficient moral character to receive a beer and wine permit. Also, two (2) convenience stores exist approximately one-half (½) mile from the proposed location that sell beer and wine off-premises.

5. The proposed location is not unreasonably close to any church, school or playground.

6. Joy and Steve Clark, the Protestants in this case, set forth several different grounds as the basis for their protest that this location is no longer suitable to be permitted for the sale of beer and wine on-premises. First, they contend that this location is no longer suitable because of the number of residences in the area, including their property, which is approximately one hundred (100) feet from the proposed location. The area has more residences that it had when previously permitted and is not as rural as it was previously. Also, a mobile home park is situated diagonally across the road from the location. These residents travel to the location on foot, cutting across the Protestants' yard at all hours, exciting their dogs. The Protestants also object to the kind of activity they have observed at the location. More specifically, they set forth that based on the history of the location and the customers that have frequented this location in the past, that the nature of the location will eventually evolve into a more negative atmosphere, despite the intentions of the Petitioner. In the past, their mail has been tampered with and beer bottles have been placed in their mail box, along with other trash in their yard. The Protestants also contend that they have observed minor children entering the location after the school bus has dropped them off at a scheduled stop in front of the location. Additionally, the Protestants object to the number of patrons that have been allowed to loiter around the outside the location in the past. Furthermore, although no concrete evidence was introduced that this location has had complaints from local law enforcement in the past, the Protestants testified that they have filed complaints themselves with law enforcement regarding noise and suspicious activities around the location as previously permitted.

Lastly, the Protestants strongly object to the amount of noise that has emanated from the location in the past, as previously permitted, which consisted primarily of live bands, disc jockeys, the juke box, and patrons loitering outside the location. They testified the location is not well insulated and the Protestants can hear the juke box from inside the location when the doors are shut. This keeps the Protestants up at night. Moreover, the front and back doors of the location have been left open during spring and summer months which results in even more noise emanating from the location.

7. As set forth above, this location has been previously permitted for the sale of beer and wine on-premises. However, this location does appear to have an adverse history and it is located within close proximity to several residences. Although the proximity to the residences does not make the location unsuitable as the Petitioner has represented that he intends to operate the location, I nonetheless find that the previous loitering and excessive noise, along with the expanding residential area, creates the potential that the operation of the location will adversely effect the neighborhood, therefore warranting restrictions on this permit. Thus, I find that the proposed location is suitable for an on-premise beer and wine permit with the restrictions set forth below. Operation of the proposed location in any other manner than that approved within this Final Order and Decision certainly presents a potential change to the operation of the Petitioner's business. Furthermore, should the Petitioner not believe that this location can be consistently operated in accordance with these restrictions, he has the option of abandoning this permit application.

Therefore, I find that the proposed location is suitable for an on-premise beer and wine permit pursuant to the restrictions set forth below. These restrictions are necessary to protect the current integrity of the community. However, the proposed location will not be suitable if the applicant does not comply with these restrictions or changes the nature of his business.

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. 2001) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2001) sets forth the requirements for the issuance of a beer and wine permit.

4. Although "proper location" is not statutorily defined, the Administrative Law Judge Division 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 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, 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. 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). ⁽²⁾

5. "A liquor license or permit may properly be 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 § 121 at 501 (1981).

6. Without 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 45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119 (1981). I conclude that this proposed location would not adversely impact this community if the location is operated with strict adherence to the restrictions set forth below.

7. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, 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 Administrative Law Judge Division, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions on permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application for an on-premise beer and wine permit of Medard Bosky, d/b/a The Low Rider Saloon, be granted, with the following restrictions set forth below:

1. The location shall not serve beer or wine after 12:30 a.m.;

2. The Petitioner shall not allow excessive noise to emanate from The Low Rider Saloon. For the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision. Furthermore, the doors of the location shall be closed to prevent excess noise from being heard outside the location.

3. The Petitioner shall maintain proper lighting around the proposed location to discourage criminal activity. The Petitioner shall insure that this lighting does not reflect or shine upon the local residences.

4. The Petitioner or his employees shall prohibit loitering and the consumption of beer or wine in the parking lot area of the proposed location. To accomplish this stipulation, Petitioner may exercise one of two choices. First, the Petitioner or his employee will personally survey the parking area of the location every fifteen (15) minutes to determine whether loiterers are present. The Petitioner must instruct any loiterers who are present to leave the premises and notify law enforcement if the loiterer fails to comply with the request within a reasonable amount of time. The Petitioner will maintain a written record indicating that such inspections were made. The second option requires the Petitioner to install close-circuit video surveillance systems sufficient to monitor all areas of the location surrounding the building's exterior.

5. The Petitioner or his employees shall pick up litter and debris from the ground of the adjacent residence within four (4) hours of the closing of the location.

6. No minors under the age of twenty-one (21) will be allowed inside the location at any time.

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

IT IS FURTHER ORDERED that the Department resume processing the Petitioner's application and issue an on-premise beer and wine permit to the Petitioner upon payment of the proper fees and costs.

AND IT IS SO ORDERED.

____________________________

Ralph King Anderson III

Administrative Law Judge

March 7, 2003

Columbia, South Carolina

1. At the hearing into this matter, the caption was amended to change the name of the proposed location from "The Bar" to "The Low Rider Saloon," the name the Petitioner used in his permit application.

2. In Taylor v. Lewis, the South Carolina State Supreme Court overturned the Alcoholic Beverage Commission's refusal to issue an off-premise beer and wine permit, where that refusal was based on the grounds of unsuitability of the applicant's business location without evidentiary support. The Supreme Court found that the Commission placed too much weight on the testimony of those opposing the requested permit where that testimony consisted entirely of opinions and conclusions which were not supported by any facts, where it was undisputed that beer had been sold to the location in question under permits issued by the Commission for approximately five (5) years prior to the present application, and where the record was devoid of any showing that the location was any less suitable for the sale of beer than during the prior five-year period. Here, though much of the testimony consisted of the opinions of the two (2) Protestants, the evidence did establish changes in the community and adverse impacts of the previous location. That evidence does rise to the level of warranting a denial of the permit. Nevertheless, I find that evidence presented established sufficient facts to warrant placing the restrictions set forth below. If these restrictions do not alleviate the past problems resulting from the operation of the location, this location simply will not be suitable for a permit.