ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007), 61-2-260 (Supp. 2007), 61-4-525 (Supp. 2007) and 61-6-1825 (Supp. 2007). Dozier Restaurants of Rock Hill, Inc., d/b/a Citizens Corner and The Vault (“Petitioner”) seeks an on-premises beer and wine permit and restaurant liquor by the drink license for its location at 157 East Main Street, Suite 200, Rock Hill, South Carolina (“location”). Protestant Tony Jannetta (“Mr. Jannetta”) filed a protest to the application with the South Carolina Department of Revenue (“Department”). Because of the protest, the hearing was required.
A hearing in this matter was held on February 28, 2008, at the offices of the ALC in Columbia, South Carolina. Both parties and Mr. Jannetta 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 liquor by the drink license should be granted contingent upon the completion of a final inspection conducted by the South Carolina Law Enforcement Division (“SLED”), the results of which certify that Petitioner is in compliance with all applicable statutes and regulations.
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. David Hall Dozier (“Mr. Dozier”) seeks an on-premises beer and wine permit and restaurant liquor by the drink license for Petitioner Dozier Restaurants of Rock Hill, Inc., d/b/a Citizens Corner and The Vault, located at 157 East Main Street, Suite 200, Rock Hill, York County, South Carolina. The location is situated inside the city limits. Mr. Dozier maintains 100% ownership of Petitioner Dozier Restaurants of Rock Hill, Inc., d/b/a Citizens Corner and The Vault.
2. Mr. Dozier is over the age of twenty-one (21) and of good moral character. 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 (30) days prior to making this application. Additionally, he currently holds a beer and wine permit for the location Moe’s Southwest Grill at Manchester Village, and he has never had this permit suspended or revoked.
3. Notice of the application was lawfully posted at the location and in a newspaper of general circulation.
4. The location, the main and basement floors of a six-story office building, was previously operated as a bank.
5. The location will be operated as a fine dining restaurant on the main level. The restaurant’s proposed hours of operation are from 11:00 a.m. to 3:00 p.m. for lunch and from 5:00 p.m. to 10:00 p.m. for dinner. The restaurant will be open for business seven (7) days a week.
6. The restaurant’s proposed menu includes shrimp, grits, steaks, and other upscale Southern foods. There is seating in the restaurant for approximately sixty (60) people. The restaurant’s commercial kitchen will be open during all hours of operation.
7. Mr. Dozier plans to operate a bar inside the location on the basement level. The bar’s proposed hours will be those permitted by state and local law. Mr. Dozier plans to have live music in the basement as well.
8. The location is situated on the corner of Main and Caldwell Streets in downtown Rock Hill. There are several establishments nearby that serve beer, wine, and liquor such as McHale’s On Main, Old Town Bistro, and the City Club.
9. Mr. Dozier currently leases the location from Barwick & Associates. Mr. Dozier’s lease is contingent upon the Department issuing a beer and wine permit and liquor by the drink license for the location.
10. Mr. Dozier will be the Manager of the location and will oversee its day-to-day operation. Currently, he is the managing partner of Moe’s Southwest Grill and works approximately fifty hours a week at Moe’s. Mr. Dozier stated that if the location is permitted to sell alcohol, he has arranged for another individual, Mr. Jeff Sanders, to takeover the day-to-day operating duties at Moe’s Southwest Grill. Until the location becomes well-established, Mr. Dozier will be present at the location during all hours of its operation.
11. Mr. Dozier intends to hire additional employees to assist him in operating the location.
11. There is adequate parking at the location: patrons may park on the street in designated parking spots, and there is a parking lot behind the location.
12. There is adequate lighting at the location. In addition, the police department is located approximately two (2) blocks away.
13. It is Petitioner’s policy that reasonable measures be taken to prevent any intoxicated person from leaving the restaurant and driving a motor vehicle. It is also Petitioner’s policy that reasonable measures be taken to prevent the sale of alcohol to underage persons. Mr. Dozier stated that all individuals’ driver’s licenses – or other acceptable forms of identification – will be checked at the entrance to the bar area and when ordering within the restaurant or at the bar to ensure that no alcohol is sold by Petitioner’s employees to underage persons.
13. At the time of the hearing, Petitioner had not yet undergone its final inspection by SLED or received its Certificate of Occupancy.
14. During SLED’s initial inspection on August 14, 2007, Agent Harold Gregory (“Agent Gregory”) determined that the location is situated within 300 feet of a nearby church, the Freedom Temple Ministries (“Freedom Temple”). Freedom Temple is located approximately two blocks from the location in the Freedom Center. In addition to Freedom Temple, the Freedom Center houses Freedom Montessori, a book store, the Greek Closet, a counseling center, Jazzercise, and the NAACP. Freedom Temple’s sanctuary door fronts Main Street, and its office door fronts Caldwell Street. Agent Gregory determined that the location is approximately two hundred and eighty-four (284) feet from Freedom Temple’s sanctuary door. Further, Agent Gregory determined that the location is approximately two hundred and seventy-five (275) feet from Freedom Temple’s office door. However, Agent Gregory stated that because only one entrance of Freedom Temple could be used in determining the distance requirements within the applicable statutes and regulations, Freedom Temple’s office door is the measuring point. Agent Gregory based his conclusion upon his experience and training. During training agents are instructed, pursuant to South Carolina statutes and regulations, to use the entrance of a church, school, or playground that is closest to the sidewalk, road, or other measurable method of ordinary pedestrian or vehicular travel. Here, Agent Gregory determined that Freedom Temple’s sanctuary door is located approximately twenty-five (25) feet from the sidewalk, and the office door is located approximately eleven (11) feet from the sidewalk. Therefore, Agent Gregory surmised that Freedom Temple’s office door is the correct measuring point in determining the distance requirements pertaining to a liquor by the drink license.
15. There are currently three entrances to the location: the primary entrance fronts Main Street, another entrance fronts Caldwell Street, and the kitchen/delivery entrance also fronts Caldwell Street. However, Mr. Dozier stated that the primary entrance on Main Street will be glassed in thereby preventing anyone from entering the location from this entrance. Although there are two entrances to the location on Caldwell Street, the entrance of the location closest to Freedom Temple’s office door will be used solely for restaurant staff and deliveries. Mr. Dozier further stated that he intends to construct a railing at the patron entrance to the location on Caldwell Street, and he submitted a proposed plan to the Department detailing the proposed railing at the location. Upon receiving the proposed plan, Agent Gregory determined that after construction of the proposed railing, the total travel distance between the location and Freedom Temple’s sanctuary door would be three hundred and four (304) feet.
16. On September 10, 2007, Rock Hill City Council (“Council”) amended Chapter 18, Motor Vehicles and Traffic, Article VIII. Pedestrians, Sec. 18-333 by adding subsection (e):
Between adjacent intersections at which there exist marked pedestrian crosswalks and where there is also a marked mid-block crosswalk, pedestrians shall not cross at any place except in a marked crosswalk.
Paul Dillingham of Spencer & Spencer, PA, the law firm which represents the City of Rock Hill, stated that the amendment, known as the “jaywalking ordinance,” prevents pedestrians from crossing a street in the city of Rock Hill at any place other than a marked crosswalk. He further stated that the purpose of amending section 18-333 to include the jaywalking ordinance was for the safety of pedestrians walking within the city.
17. On October 31, 2007, Agent Gregory submitted a special report to the Department regarding the distance between the location and Freedom Temple’s office door. In consideration of the city’s newly enacted jaywalking ordinance, Agent Gregory determined that the distance between the location and Freedom Temple’s office door exceeds three hundred (300) feet. Specifically, when crossing at the marked crosswalk at the Caldwell and Main Streets intersection, the distance between the two establishments is four hundred and one (401) feet. Further, when crossing at the newly marked crosswalk at the other end of Caldwell Street, as depicted on the SLED map, the distance between the two establishments is four hundred and eighty (480) feet.
18. Manning M. Kimmel, IV (“Mr. Kimmel”), a businessman residing in the Rock Hill area, has served on several committees including the Rock Hill Airport Commission and the Rock Hill Economic Development Corporation (“planning committee”). He stated that many of the city’s retail establishments downtown have slowly moved away, including the Oakland Baptist Church which currently houses the Freedom Temple Center. To combat this problem, the city began a streetscaping project in the downtown area in an effort to revitalize that area of downtown Rock Hill. Several downtown buildings have been built or re-built and new lighting has been installed along Main Street. Further, business owners – including Mr. Dozier – have been offered financial incentives from the city if their businesses are located within the area of revitalization. Mr. Kimmel stated that the planning committee fully supports Petitioner’s application as the city desires businesses – like Mr. Dozier’s restaurants – that can possibly improve the atmosphere of downtown Rock Hill.
19. Mr. Jannetta filed a protest to the application and testified at the hearing. Mr. Jannetta lives approximately one mile from the location, and his primary concern is the proximity of the location to Freedom Temple. Specifically, Mr. Jannetta expressed concerns that SLED did not accurately measure the distance between the location and Freedom Temple to ensure that the distance requirements pertaining to a liquor by the drink license were met. Mr. Jannetta also expressed concerns that the Department did not correctly apply S.C. Code Reg. § 7-303 regarding the distance requirements – of a liquor by the drink license – between the location and Freedom Temple. Mr. Jannetta stated that he does not oppose the Department issuing a beer and wine permit to Petitioner because he believes the statutes and regulations regarding distance requirements are only applicable to liquor by the drink licenses. He also stated that he believes liquor has a more “dramatic impact” on society. In addition, Mr. Jannetta stated that the sole purpose of enacting the jaywalking ordinance was to allow Petitioner to be issued the requested permit and license from the Department. Finally, Mr. Jannetta stated that he doesn’t believe the ordinance should be used to “stretch” the meaning of the state’s statutes and regulations concerning the regulation of alcohol.
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 (2005 & 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 a 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. Reg. 7-401.3 provides that an establishment holding a restaurant liquor by the drink license must have menus readily available to its patrons and must prepare, for service to its patrons, hot meals at least once each business day the establishment is open. Food and snacks prepared off the licensed premises but sold thereon do not constitute a meal.
6. 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 three hundred feet of any church, school, or playground situated within 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. Reg. 7-303 (Supp. 2007) clarifies how distances from the location to schools, churches, and playgrounds are measured:
With respect to a church or a school, the distance shall be measured from the nearest entrance of the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is the closer. The South Carolina Department of Revenue has determined that the grounds in use as part of the church or school is restricted to the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemeteries, or any purpose other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings. Only one entrance to the grounds of a church or school shall be considered, to wit: the entrance to the grounds nearest an entrance to the church or school building. Where no fence is involved, the nearest entrance to the grounds shall be in a straight line from the public thoroughfare to the nearest door. The nearest point of the grounds in use as part of a playground shall be limited to the grounds actually in use as a playground and the grounds necessary for ingress or egress to such grounds from the public thoroughfare.
(emphasis added). The Department correctly determined that the entrance to Freedom Temple’s office door is the measuring point used when calculating the travel distance between the location and Freedom Temple pursuant to S.C. Code Ann. § 61-6-120 and 23 S.C. Code Ann. Reg. 7-303. See 23 S.C. Code Ann. Reg. 7-303 (“Only one entrance to the grounds of [Freedom Temple] shall be considered, to wit: the entrance to the grounds [of Freedom Temple] nearest [the] entrance to the church . . . building.”). In other words, because Freedom Temple’s office door is located approximately fourteen (14) feet closer to the nearest route of ordinary pedestrian or vehicular travel – in this case, a sidewalk – than Freedom Temple’s sanctuary door, the entrance to Freedom Temple’s office must be used as the measuring point between itself and the location. The jaywalking ordinance enacted by the city of Rock Hill increases the distance between the location and Freedom Temple’s office to over four hundred (400) feet in either direction of travel.
Moreover, even if Freedom Temple’s sanctuary door was included within the determination of the travel distance between the location and Freedom Temple, the installation of a railing at the location increases the travel distance between the location and Freedom Temple to three hundred and four (304) feet. See John D. Geathers & Justin R. Werner, The Regulation of Alcoholic Beverages in South Carolina 209, n. 182 (2007) (“Nothing in the law precludes an applicant from erecting fencing or making other structural changes to his property in order to ensure that the proposed location remains outside of the proscribed distance from a protected institution.”) (citing Short v. State, 804 P.2d 1150, 1152-32 (Okla. Ct. App. 1990))).
7. 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).
8. 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).
9. 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.
10. 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).
11. 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).
12. Furthermore, S.C. Code Ann. Reg. 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. 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 (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).
14. Based upon the testimony of the witnesses presented at the hearing, 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. It is located in a dense commercial area with many other retail businesses and restaurants nearby that are permitted and licensed for the sale of beer, wine, and liquor for on-premises consumption. In addition, there are no churches, schools or playgrounds within three hundred (300) feet of the location. Essentially, there is no evidence in the Record that the location is unsuitable or that it would have an adverse impact on the community. While the Court is respectful of the Protestant’s opposition to the requested permit and license, the arguments proffered by the Protestant do not constitute a sufficient basis to deny Petitioner’s application as the Court finds that the Department correctly computed the distance between the location and Freedom Temple. Therefore, I find that there is sufficient evidence in the Record to show that the proposed location is suitable and it would not have an adverse impact on the community. 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 contingent upon the completion of the final inspection conducted by SLED, the results of which certify that Petitioner is in compliance with all applicable statutes and regulations.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the application for a beer and wine permit and liquor by the drink license by Dozier Restaurants of Rock Hill, Inc., d/b/a Citizens Corner and The Vault, 157 East Main Street, Suite 200, Rock Hill, South Carolina is GRANTED contingent upon the completion of a final inspection conducted by SLED, the results of which certify that Petitioner is in compliance with all applicable statutes and regulations.
AND IT IS SO ORDERED.
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March 13, 2008 Marvin F. Kittrell
Columbia, South Carolina Chief Administrative Law Judge
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