ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Court (“ALC”)
for a final order and decision following a contested case hearing pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007), S.C. Code
Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007).
The petitioner, Redbank Community Club, d/b/a The Shady Lady (“Petitioner” or “The Shady Lady”), applied for an on-premises beer and wine permit pursuant to
S.C. Code Ann. §§ 61-4-500 et seq. (Supp. 2007) and a non-profit private
club liquor-by-the-drink license pursuant to §§ 61-6-1600 et seq. (Supp.
2007) for the location at 1030 B Redbank Road, Goose Creek, South
Carolina 29445. Pastor Jimmy Fuller on behalf of Harbour Lake Baptist Church (“Protestant”) filed a written protest to the Petitioner’s application.
Respondent South Carolina Department of Revenue (“Department”) denied the application
pursuant to § 61-4-525 and § 61-6-1825 due to the receipt of the Protestant’s
valid public protest. The Department determined that, other than the timely
filed protest, the Petitioner met all of the other statutory requirements. After
notice to the parties and the Protestant, the court held a hearing on this matter
on April 21, 2008. Both parties and the Protestant appeared at the hearing.
Evidence was introduced and testimony presented. After carefully weighing all
of the evidence, the court finds that the Petitioner’s application for this
location should be granted subject to restrictions.
ISSUE
The only issue in dispute is the suitability of the
location. S.C. Code Ann. § 61-4-520(5)-(6); 61-6-1820; Schudel v. S.C.
Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
FINDINGS OF FACT
Having observed the witnesses and exhibits
presented at the hearing and closely passed upon their credibility, and taking
into consideration the burden of persuasion by the parties, the court makes the
following Findings of Fact by a preponderance of the evidence.
Evidence was presented regarding all of
the relevant statutory criteria. Notice of the time, date, place, and subject
matter of the hearing was given to all parties and the Protestants.
Mr. Joseph Thomas (“Thomas”) is the principal member
of the business seeking the requested permit and license. He is over the age
of twenty-one and appears from the evidence presented to be of good moral
character. The business does not owe the state or federal government any
delinquent taxes, penalties, or interest. Notice of the application was
lawfully posted at the location and was published in a newspaper of general
circulation.
The Petitioner is currently seeking a permit for the
retail sale of beer and wine for on-premises consumption and a non-profit private club liquor-by-the-drink
license for the location at 1030 B Redbank Road, Goose Creek, South Carolina 29445. The Department granted a temporary permit and license to the
Petitioner because the proposed location was licensed at the time, under a
former owner. The Shady Lady operates as a members-only billiards club. The
club’s members play billiards on eight-person teams; Thomas testified that
there are 80 to 90 teams total. The area in the vicinity of the proposed
location is substantially residential, but also contains a few small businesses.
Although the location has had problems with criminal activity in the past,
there have been no incidents inside the club since Thomas obtained ownership,
although there have been two altercations in the parking lot of the club. The
parking area is well lit at night, and parking at the club appears to be
adequate.
On January 4, 2008, the Petitioner entered into an
agreement with the Department that the following restrictions be imposed on the
Petitioner’s permit, if and when it is issued or renewed:
(1)
Redbank Community Club, located at 1030 B Redbank Road, in or near the town of Goose Creek, South Carolina (“Licensee”) does agree that it will not permit video gaming
machines, and similar video gaming machines of chance, as prohibited by S.C.
Code Ann. Section 12-21-2710, or any activity that constitutes gambling, upon
its licensed premises in the future.
(2) (A) That no person that was a principal of the Redbank Social Club, as
defined in S.C. Code Ann. Section 61-2-100(H)(2) (officer, partner, member of,
manager, fiduciary, stockholder, or employee with day to day operational
management responsibilities) specifically including but not committed to, Jerry
Hicks, Amanda K. Bond and Beverly J. Hicks, be permitted to be a ‘principal’ or
otherwise have a direct or indirect financial interest in the business known as
Redbank Community Club, located at 1030 B Redbank Rd, in or near the town of
Goose Creek, South Carolina.
(3) That further, this Restriction shall apply to any subsequent trade name
that the Applicant may do business under.
(4) That should the Licensee violate the provisions of this Restriction
Agreement, the Licenses [sic] does hereby consent to the summary revocation of
the beer and wine permit without further administrative proceedings by the
Department.
(Respt.’s Ex. 2).
Pastor Fuller testified on behalf of the Protestant about
his concerns regarding crime in the area and police incident reports involving
the proposed location under its previous ownership. In the Protestant’s
opinion, serving alcohol at the club will make the area more dangerous because
the proposed location is near a main road and children play in the area. The
Protestant further testified that there are several schools in the area. The
Protestant measured the distance to the nearest school and as being 486 feet
from the proposed location; however, the map prepared by the South Carolina Law
Enforcement Division (“SLED”) for the Department shows the distance to be 552
feet.
LAW
Based upon the foregoing Findings of Fact, the court
concludes the following as a matter of law.
1. Jurisdiction
Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[T]he issuance or granting of a license to sell beer or
alcoholic beverages rests in the sound discretion of the body or official to
whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic
Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App.
1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n,
269 S.C. 13, 235 S.E.2d 806 (1977). 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). 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, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d
448, 450 (Ct. App. 1990).
2. Suitability of Location
a. Generally
Section 61-4-520 establishes the criteria for the
issuance of a beer and wine permit. Included in the criteria is the
requirement that the proposed location be a proper and suitable one. See § 61-4-520(5)-(6). Additionally, § 61-6-1820 sets forth the basic criteria for
the issuance of a liquor license. However, a liquor license may be denied if
the proposed location is not suitable. See Schudel, 276 S.C. 138,
276 S.E.2d 308. Therefore, either a beer and wine permit or a liquor license
may be denied if the location of the business is not a proper one.
b. Factors in Determining Proper Location
“Proper location” is not statutorily defined, but
broad discretion is vested in the trier of fact to determine the fitness or
suitability of a particular location for the requested permit. See Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). In determining
whether a proposed location is suitable, it is proper for this tribunal to
consider any evidence that shows adverse circumstances of location. Kearney
v. Allen, 287 S.C. 324, 326, 338 S.E.2d 335, 337 (1985); Palmer, 282
S.C. at 249, 317 S.E.2d at 478 (citing Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972)). The determination of suitability of location is not
necessarily solely a function of geography. Rather, 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, 287 S.C. at 326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276
S.E.2d at 308. Further,
a liquor license or permit may be properly
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 § 168
at 366 (2004).
Other
factors may be considered when determining whether a location is proper. For
example, a liquor license shall not be granted if the place of business is
within 300 feet (if within a municipality) or within 500 feet (if outside a municipality)
of any church, school, or playground. S.C. Code Ann. § 61-6-1820(3); S.C. Code
Ann. § 61-6-120. The Alcoholic Beverages, Beer and Wine regulations provide
specific guidance on how the distance is measured for liquor licenses. To
determine the distance between a proposed location and a church, “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.” 23 S.C. Code Ann. Reg. 7-303 (Supp. 2007). However, it is important
to note that the distance restrictions in § 61-6-120 do not apply when the
proposed location is already licensed at the time of the new application. See S.C. Code Ann. § 61-6-120(A) (“The [distance]
restrictions do not apply . . . to new applications for locations which are
licensed at the time the new application is filed with the department.”).
Although the General Assembly did not provide absolute
statutory distance requirements for beer and wine permits as it did for liquor
licenses, the proximity to residences, churches, schools, and playgrounds may
be considered for beer and wine permits as well. S.C. Code Ann. § 61-4-520(6); Smith, 258 S.C. at 504, 189 S.E.2d at 301. Therefore, the decision as
to whether the proximity is improper for a beer and wine permit must be made on
a case-by-case basis resting upon the peculiar facts of each permit request.
Additionally, consideration can be given to the impact
the issuance of the permit or license will have on law enforcement. Fowler
v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); Roche v. S.C. Alcoholic
Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975). Evidence
that the granting of a permit will place a strain upon police to adequately
protect the community must be weighed. Moore v. S.C. Alcoholic
Beverage Control Comm’n, 308 S.C. 160, 162, 417 S.E.2d 555, 557 (1992).
Denial is appropriate where the public areas surrounding the proposed location
have been the source of constant law enforcement problems or significant
problems with public intoxication. Roche, 263 S.C. at 451, 211 S.E.2d
at 243. Another pertinent factor is whether police have been summoned to the
scene on prior occasions when licensed to another party. Schudel, 276
S.C. at 141-42, 276 S.E.2d at 309-10. It is relevant whether the location is
near other locations that have either been a constant source of law enforcement
problems or are locations where young people congregate and loiter. Palmer,
282 S.C. at 250, 317 S.E.2d at 478.
Similarly, consideration can be given to whether the
location is heavily traveled or creates a traffic danger. Id.
Furthermore, whether the location has in the recent past been permitted and
whether the location is now more or less suitable than it was in the past is a
relevant factor. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973). Finally, a valid consideration is whether the surrounding area is
substantially commercial. Id.; Byers v. S.C. Alcoholic Beverage
Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
S.C. Code Ann. § 61-4-580(5) (Supp. 2007) prohibits a
permittee from knowingly allowing “any act, the commission of which tends to
create a public nuisance or which constitutes a crime under the laws of this
state” to occur on the licensed premises. The term “licensed premises”
includes not only the interior of The Shady Lady, but also the areas
immediately adjacent to the entrance and exit, as well as the parking areas. See 23 S.C. Code Ann. Regs. 7-700 (Supp. 2007) (“Licensed premises shall include
those areas normally used by the permittee or licensee to conduct his business
and shall include but are not limited to the following: selling areas, storage
areas, food preparation areas and parking areas.”). “[O]ne who holds a license to sell alcoholic beverages is responsible
for supervising the conduct of his clientele, both within the licensed premises
and in the immediate vicinity, in order to ensure that his operations do not
create a nuisance for the surrounding community.” Dayaram Krupa, LLC v.
S.C. Dep’t of Revenue, 06-ALJ-17-0929-CC, 2007 WL 1219343 (S.C. Admin. Law Ct., March 19, 2007) (citing § 61-4-580(5) and A.J.C. Enters., Inc. v.
Pastore, 473 A.2d 269, 275 (R.I. 1984)). The
court in A.J.C. Enterprises held that a liquor licensee “assumes an
obligation to supervise the conduct of its clientele so as to preclude the
creation of conditions within the surrounding neighborhood which would amount
to a nuisance to those who reside in the area.” A.J.C. Enters., Inc.,
473 A.2d at 275. In the event that a licensed location becomes a public
nuisance to the surrounding community, the Department may revoke or refuse
renewal of the license for the location. See S.C. Code Ann. §
61-4-580(5).
Without sufficient evidence of an adverse impact on
the community, a permit or license application must not be denied if the
statutory criteria are satisfied. The fact that the issuance of a permit or
license is protested is not a sufficient reason, by itself, to deny the
application. See 48 C.J.S. Intoxicating Liquors § 166 (2004).
Moreover, the denial of a permit or license to an applicant on the ground of
unsuitability of location is without evidentiary support when relevant
testimony of those opposing the requested license or permit consists entirely
of opinions, generalities, and conclusions not supported by the facts. Taylor, 261 S.C. at 171, 198 S.E.2d at 802.
c. Conclusions
After carefully weighing the evidence and applying the
law as discussed above, the court finds the proposed location to be suitable. Applying
the statutory and regulatory instructions as to measurements for liquor
licenses, the proposed location is not within 500 feet of any church, school,
or playground and thus does not violate the statutory prohibition for the sale
of liquor by the drink. Therefore, the distance does not preclude a liquor
license. Furthermore, even if the school were within 500 feet of the proposed
location, the statutory liquor license distance restrictions are not applicable
in the present situation where the location was licensed at the time of the new
application.
Although the court is concerned that the proposed
location will be operating during the daytime near several local schools, it
notes that the proposed location has been licensed for many years and that the
applicant expressed sincere intentions to operate the club properly and to be a
good neighbor to the community by avoiding the problems experienced under the
club’s prior ownership. As further evidence of his intentions, the Petitioner
has entered an agreement with the Department to voluntarily accept restrictions
on the permit if the court finds that one should be issued. In light of his
assurances, the court finds that it would be unfair to impute the problems
under the prior ownership to Thomas.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that the Petitioner meets all of the statutory
requirements for an on-premises beer and wine permit and non-profit private club liquor-by-the-drink
license. It is therefore
ORDERED that
the Department shall GRANT Petitioner’s application for an on-premises
beer and non-profit private club
liquor-by-the-drink license for the premises located at 1030 B Redbank Road,
Goose Creek, South Carolina 29445, in accordance with § 61-2-80, § 61-4-540,
and § 61-6-1820, subject to the agreement dated January 4, 2008, between the
Department and the Petitioner.
IT IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
April 30, 2008
Columbia, South Carolina
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