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. (2005 & Supp. 2007), 61-2-260
(Supp. 2007), and 61-4-525 (Supp. 2007) for a contested case hearing. Petitioner
Donald Smith, d/b/a Sue’s Game Room (“Petitioner”) seeks an on-premises beer and
wine permit for its location at 305 Carter Street, Timmonsville, South Carolina
(“location”). Ivey Self and Randy Grayson (“Protestants”) filed protests to the
application with the South Carolina Department of Revenue (“Department”).
Because of the protests, the hearing was required.
A hearing in this matter was held before me on February
28, 2008, at the Court in Columbia, South Carolina. Both parties and the
Protestants appeared at the hearing. Evidence was introduced and testimony was
taken from both the Petitioner and both Protestants. After carefully weighing
all the evidence, I find and conclude that Petitioner’s request for an
on-premises beer and wine permit must be granted.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and further taking into consideration the burden of
persuasion by the parties, 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 timely given to all the
parties and the Protestants.
2. Petitioner/Donald
Smith seeks an on-premises beer and wine permit for the location at 305 Carter
Street, Timmonsville, South Carolina. The location is situated inside the city
limits of Timmonsville in Florence County. Petitioner is operating a game
room at the location.
3. Petitioner
is the applicant for the permit and is the manager of the location. He is over
the age of twenty-one. He is a legal resident of the State of South Carolina
and has maintained his principal place of abode in this State for at least
thirty days prior to making this application. Mr. Smith is of good moral
character and has not had a permit or license revoked in the last two years.
4. Notice
of the application was lawfully posted both at the location and in a newspaper
of general circulation.
5. The building at
the proposed location has a front entrance and two large windows in the front.
The main area in the building is open and three arcade games and a jukebox are
located in it. Music is played at the jukebox. In addition to the main area, there
are two adjacent rooms: one contains a television and a seating area and the
other contains a pool table. A unisex bathroom is located at the rear of the
main area. Also, a basement is located in the building and a pool table is
located in it.
6. The current hours
of operation at the location are from 6:00 p.m. until 12:00 a.m. on Thursday; 6:00
p.m. until 1:00 a.m. on Friday; and 6:00 p.m. until 12:00 a.m. on Saturday.
7. There is a sign on
the door of the premises which notifies customers that any individual under the
age of twenty-three (23) is prohibited from entering. Petitioner testified
that if the permit is granted, he would only allow the admission of persons in
the location who are at least twenty five years of age or older.
8. There is parking
at the location for approximately twenty cars.
9. Petitioner is
employed during the day as a supervisor with American Telephone and Telegraph
Company. He is available to be present at the location during its hours of
operation.
10. Charlie Taylor
(“Mr. Taylor”) is Mr. Smith’s business partner. Mr. Taylor currently works
swing shifts at a Honda automobile company. Because Mr. Taylor’s work hours vary
daily, he is unable to be present at the location on a consistent basis. Since
September 2007, he has been at the location approximately four to five days a
month.
11. The location
fronts on Carter Street which is a paved two-lane road. Beside the location
is a warehouse that is leased to another individual and a vacant warehouse is
located across Carter Street.
12. Petitioner leases
the location from his aunt, Miss Ivey Self (“Ms. Self”), who is a Protestant. The
written contract between them provides that the lease term began in September
2007 and runs for a period of one year. Pursuant to the lease, Mr. Smith pays a
monthly rental of $450.00. Also, the lease provides that if there are three
official complaints regarding the building or its operation, the contract will
be voided.
14. Ms. Self executed a
bond for title in August 2007 with Mr. Lin Smith of Pawley’s Island for the
purchase of approximately eighteen acres. The location is a part of the
property which Ms. Self is purchasing under the bond for title, as well as a
warehouse adjacent to the location (leased by Ms. Self to another person) and a
vacant warehouse across the street from the location. The eighteen acres also
contains vacant acreage that Ms. Self is using to develop single family homes for
sale. Ms. Self has been approved to build approximately 35 residential homes
on this vacant acreage and, at the time of the hearing, two homes were
approximately 97% complete. These homes are situated approximately two hundred
feet from the location. There are also several other residences in close
proximity to the location.
15. An oil delivery
company operated a business at the location many years ago. Later, Ms. Self
and her children operated a car wash and game room at the location. When her
children became employed elsewhere in April 2007, Ms. Self ceased operating these
operating these businesses.
16. Litigation is currently
pending between Petitioner and Ms. Self in a magistrate’s court in Florence
County pertaining to the lease.
17. Ms. Self’s
primary concern with the grant of a permit is her desire that alcohol not be
consumed at the location. She opined that Petitioner was aware when they
negotiated the lease that he was prohibited from selling alcohol there. Further,
she stated that Petitioner was aware at that time of her plans to develop houses
for sale on the adjoining vacant property she was purchasing. Ms. Self is
concerned that individuals might not purchase a new home if a “club” is located
close by. She is concern about that this club, if it is authorized to sell
and serve alcohol for on-premise consumption, would have a negative impact on
the surrounding community. Also, she is concerned that patrons at the location
will litter the premises and that the club might sell alcohol to underage
individuals. Ms. Self
further stated that she has had to pick up litter from the parking areas of the
location on numerous occasions.
18. Randy Grayson assists
Ms. Self in the development of her real properties and in the construction of houses.
He has similar concerns as Ms. Self regarding the location and its game room
business. Mr. Grayson had previously worked with the Timmonsville Police
Department for approximately seven years as a Chief Investigator, resigning
from employment there in November 2007. During the months of October and
November 2007 – while employed with the police department and when Mr. Smith
began the operation of the game room – Mr. Grayson conducted surveillance of
the location. He presented several photographs he took of the location in
October 2007. One of the photograph was taken of a large trashcan that
contained a beer cans. The implication was that petitioner was selling beer
at the location without having a permit authorizing such. Finally, Mr. Grayson
disagreed with the depiction of the general location of the game room as drawn on
a map by a State Law Enforcement Division (“SLED”) agent. Mr. Grayson opined one
or more residences as shown on the map were closer to the location than
depicted thereon.
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. 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).
5. 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).
6. 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.
7. 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).
8. 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 Administrative Law
Court, 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).
9. 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.
10. 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 Section 61‑4‑580…” S.C. Code Ann. §
61-4-590(A) (Supp. 2007).
11. Based
upon the evidence presented to the Court, I find that the location is suitable
for the issuance of an on-premises beer and wine permit. The Court is
cognizant of the concerns of Ms. Self that the location is in close proximity to
the area where she is constructing new houses for sale. However, the Court
finds that no provision(s) was placed in the lease prohibiting the sale of
alcohol on the leased premises. Further, the Court notes that the construction
of these new homes began after the lease of the location to Petitioner.
Concerning the issue of litter at the location, the Court finds that Petitioner
intends to keep the premise outside the location free from litter. As to the
unlawful sale of beer to others, including minors, the Court finds the record
devoid of any evidence proving such. Petitioner stated that all beer drank at
the location was brought by him or by relatives and that they consumed it. I
find that testimony to be credible. There is no evidence to substantiate Mr.
Grayson’s assertions of beer being sold to customers at the location. While
the Court is respectful of the Protestants’ concerns, they do not provide a
sufficient basis to deny the permit.
Accordingly,
it appears that Petitioner meets all statutory requirements for the issuance of
an on-premises beer and wine permit and that it is suitable for the issuance of
the permit. Further, I conclude that the permitting
of the location for on-premise beer and wine consumption will not have an
adverse impact on the surrounding community.
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 by Donald Smith d/b/a Sue’s Game Room located at 305 Carter Street, Timmonsville,
South Carolina is GRANTED.
AND
IT IS SO ORDERED.
__________________________________
Marvin F.
Kittrell
March 10, 2008 Chief
Administrative Law Judge
Columbia, South Carolina
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