ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (ALC) pursuant to S.C. Code
Ann. § 1-23-310 et seq. (Supp. 2006), § 61-2-260 (Supp. 2006), and §
61-6-185 (Supp. 2006) for a contested case hearing. The Department of Revenue
(Department) denied the application of Big Guys BBQ, d/b/a Hilltop Lounge
(Petitioner) for an on premises beer and wine permit for its location at 12393
Highway 25 Business, Ware Shoals, Laurens County, 29692, South Carolina. The
Department received a timely filed public protest by George Estes on July 14,
2007. George Estes (Intervenor) filed a Motion to Intervene on January 22,
2008. The Motion was granted on February 6, 2008.
Pursuant
to notice to the parties, a hearing was held on February 25, 2008. All parties
appeared at the hearing. After carefully weighing all the evidence, I conclude
that the on premises beer and wine permit should be granted.
FINDINGS
OF FACT
Having
observed the testimony of the witnesses and exhibits presented at the hearing
and closely passed upon their credibility, I make the following Findings of
Fact by a preponderance of evidence:
1. Petitioner
seeks an on premises beer and wine permit for its location at 12393 Highway 25
Business, Ware Shoals, South Carolina.
2. Petitioner
is a 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.
3. Notice
of the application was lawfully posted at the location, and in the Laurens
County Advertiser, on July 11, 18, and 25, 2007, a newspaper of general
circulation.
4. Petitioner
does not currently hold any beer and wine permits, or have an interest,
financial or otherwise, in any other establishment that holds such a permit.
5.
The location is near the intersection of Highway 25 Business and Hill
Estates Road and is comprised of approximately three (3) acres.
6.
There are no residences, churches, schools, or playgrounds within five
hundred (500) feet of the location.
7. The
location’s proposed hours of operation are from 2:00 p.m. to 10:00 p.m., Monday
through Saturday.
8. There
will be no loud music or live bands at this location.
9. Petitioner
claims that he will serve barbecue on Friday and Saturday, and offer snacks as
well.
10.
Intervenor George Estes opposes the issuance of the on premises beer and
wine permit due to his concerns about the welfare of the surrounding community.
Mr. Estes further objects to the license being issued because of the location and
the problem that it would pose for law enforcement to properly exercise
jurisdiction over the area.
11. Currently,
there are no on premise beer and wine permits within ten (10) miles of the
proposed location.
12. Intervenor
Estes sent a Freedom of Information Act request to Laurens County Sheriff Chasteen,
requesting identity of the individuals who owned the cars he had observed at a location
where Petitioner was also present based on their license plates. The Sheriff
complied with that F.O.I.A. request. Major Chris Hudson testified at trial
that the Laurens County Sheriff is neutral with respect to the Petitioner’s
application.
CONCLUSIONS
OF LAW
Based
upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court
has jurisdiction in this
matter pursuant
to S.C. Code Ann. §61‑2‑260 (Supp. 2007).
2. The factual determination of whether or not
an application is granted or denied is
usually the sole
prerogative of the agency charged with rendering that decision. Palmer v.
South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).
3. The applicant has complied with all the
provisions of S.C. Code Ann. §61‑4‑520
regarding
application conditions. The only remaining issue is the suitability of the
location pursuant to S.C. Code Ann. § 61‑4‑520(6).
4. Licenses and permits issued by the State for the sale of beer, wine, and
liquor are
not rights or
property, but are rather privileges granted in the exercise of the police power
of the State to be used and enjoyed only so long as the restrictions and
conditions governing them are complied with. As the tribunal authorized to
grant the issuance of a license is also authorized, for cause, to revoke it,
that tribunal is likewise authorized to place restrictions or conditions on the
license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d
22 (1943).
5. 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).
6. As
the trier of fact, an Administrative Law Judge is authorized to determine the
fitness or suitability of the proposed business location of an applicant for a
beer and wine permit using broad but not unbridled discretion. Ronald F.
Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984,
dealing with a Retail Liquor License). It is also the fact finder’s
responsibility to judge the demeanor and credibility of witnesses and determine
the relevance and weight of any testimony and evidence offered.
7. Although
“proper location” is not statutorily defined, broad discretion is vested in the
judge in determining 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 a 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 on the community
within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338
S.E.2d 335 (1985). Any evidence adverse to the location may be considered.
Further, the court can consider whether “there have been law enforcement
problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
8. The Department of Revenue, which is
the governmental body charged with
regulating and
enforcing violations concerning permits and licenses involving the sale of beer
wine and liquor, did not object to the granting of a permit in this case. I
find that this location is suitable for the on‑premises sale of beer and
wine.
9. Intervenor’s argument is that the location
will have an adverse impact on the community. Intervenor claims the associates
of the Petitioner are of unsavory character; that the Petitioner is being
untruthful about who will handle the daily operation and management of the
business; and that the location will pose a problem for law enforcement. Intervenor
also believes that the proposed location would increase traffic in the area,
because there are no other locations with an on premises beer and wine permit
within ten (10) miles of the location. Intervenor, however, offered no
evidence to support his argument, and “findings…may never be based upon surmise, conjecture, or speculation, but must be founded on
evidence of sufficient substance to afford a reasonable basis for it.” Mullinax
v. Winn-Dixie Stores, Inc., 318 S.C. 431, 443, 458 S.E.2d 76, 83 (Ct. App.
1995). Although Intervenor very strongly advocated his concerns, he failed to
satisfy the burden of proof necessary to justify the denial of the permit at
this location.
For the reasons above, the Court finds that the
Petitioner has met all of the statutory requirements for an on premises beer
and wine permit, and authorizes the Department to issue the on premises beer
and wine permit.
ORDER
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 by Big Guys BBQ, LLC, d/b/a Hilltop Lounge, 12393 Highway 25 Business,
Ware Shoals, Laurens County, 29692, South Carolina must be granted.
AND IT IS SO
ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 9, 2008
Columbia, South Carolina
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