SC Administrative Law Court Decisions

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), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007). The petitioner, Kevin Barnes, d/b/a The Other Place Bar (“Petitioner” or “Barnes”), applied for an on-premises beer and wine permit pursuant to §§ 61-4-500 et seq. for the location at 7557 Moorefield Memorial Highway in Liberty, South Carolina, 29657. Richard and Sandra Fuller, William and Sandra LeCroy, Robert and Bea Moore,^[1] Kenneth and Linda Rampey, Gary Sexton, and Ronnie Sexton (“Protestants”) filed written protests to the Petitioner’s application. Respondent South Carolina Department of Revenue (“Department”) denied the application pursuant to § 61-4-525 due to the receipt of the Protestants’ valid public protests. The Department determined that, other than the timely filed protests regarding the suitability of the location, the Petitioner met all of the other statutory requirements.

After notice to the parties and the Protestants, the court held a hearing on this matter on April 1, 2008. Both parties and the Protestants 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 as long as certain conditions are met.

ISSUE

The only issue in dispute is the suitability of the location. §§ 61-4-520(5)-(6); 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.

The Petitioner seeks a permit for the retail sale of beer and wine for on-premises consumption for the location at 7557 Moorefield Memorial Highway in Liberty, South Carolina, 29657. The proposed location is in Pickens County. Notice of the application was lawfully posted at the location and was published in a newspaper of general circulation.

Mr. Kevin Barnes (“Barnes”) is the individual seeking the requested permit and license. Barnes is over the age of twenty-one. Barnes plans to manage the proposed location himself. The proposed location will operate solely as a bar. Music will be provided via a jukebox. No food will be served at the location.

The proposed location had a permit under a former owner. The area in the vicinity of the proposed location has numerous residences, as well as businesses consisting of a produce stand, a siding and window retail store, and a café.

There is no evidence that the area has problems with criminal activity or that the police protection in the area is inadequate. Barnes testified that there are about twenty-five parking spaces available at the proposed location, although the South Carolina Law Enforcement Division (“SLED”) indicated, as a result of its investigation on behalf of the Department, that there were only about ten parking spaces. Barnes testified that the proposed location would be open from 4 p.m. until 2 a.m. on Thursdays and Fridays, and from 4 p.m. until midnight Mondays through Wednesdays, and Saturdays.

William and Sandra LeCroy, Linda Rampey, and Gary Sexton testified in opposition to the application. Gary Sexton (“Sexton”) lives across the street from the proposed location, and he experienced problems with the club under its previous ownership. Sexton testified that he has had to pick up beer cans on his property. Also, a school bus drops off children in front of the proposed location as late as 4:15 p.m. on school days. Furthermore, Sexton testified that there have been numerous car accidents near the proposed location. Donald Smith^[2] testified about an automobile accident he was involved in near the proposed location. The evidence shows that several major traffic collisions have occurred at an intersection approximately 250 yards from the proposed location. Linda Rampey testified about beer bottles being thrown against her fence during the management of the previous owner. Rampey also stated that the noise from the proposed location would prevent her from sleeping. William LeCroy stated that he had to pick up trash in his front yard when the proposed location was managed by the previous owner. LeCroy expressed concern that alcohol will be served in close proximity to the children that will be present in the afternoons. LeCroy also has an adopted son who plays near the proposed location.

LAW

Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.

1. Jurisdiction and Review

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).

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, 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. 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 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) (“The record is devoid of any showing that the location is any less suitable for the sale of beer now than during the prior five (5) year period [when it was operated by a different owner].”). 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 Other Place Bar, 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 must not be denied if the statutory criteria are satisfied. The fact that the issuance of a permit 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 to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested 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 as long as certain conditions are met. The evidence clearly shows that the property near the proposed location has had problems with trash in the past. Furthermore, evidence was presented that a school bus drops off children in front of the proposed location. The court finds, based on the evidence presented, that restrictions are necessary to ensure that the location will not endanger or disturb the community.

The proposed location is not located near any church, school, or playground, although it is close to several residences. See S.C. Code Ann. § 61-4-520(6) (Supp. 2007); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Byers v. S.C. Alcoholic Beverage Control Comm’n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991) (holding that proximity to a residence is by itself sufficient to support a finding of unsuitability and denial of a permit). In addition, the location previously operated for many years under a permit with no conditions imposed.

While the Protestants expressed concerns as to numerous accidents at a curve near the proposed location, a map submitted by the Protestants shows a relatively straight throroughfare. Further, the testimony showed that the curve is approximately 250 yards from the proposed location.

The court finds that for the location to remain a suitable one, the Petitioner must: (1) take reasonable measures to prevent loitering, drug usage, and other illegal activity; (2) provide adequate trash receptacles near the exits of the bar and take measures to ensure that patrons do not leave the bar with beer bottles that could potentially be thrown on adjacent property; (3) perform regular cleanup after closing each business day before daylight; (4) take reasonable measures to ensure that music or noise from the bar and its immediately surrounding areas is not discernibly audible from the nearest residence to the proposed location when the doors and windows of the residence are closed; (5) take reasonable measures to ensure that there is adequate parking and that bar patrons do not park so as to create a traffic hazard or without permission on private property not owned or leased by the Petitioner; and (5) not serve beer or wine until 5:00 p.m. on days when local schools are in session.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above, the court finds that, with the above-noted restrictions, the Petitioner meets all of the statutory requirements for the on-premises beer and wine permit. It is therefore

ORDERED that the Department shall GRANT Petitioner’s application for an on-premises beer and wine permit for the premises located at 7557 Moorefield Memorial Highway in Liberty, South Carolina, 29657, in accordance with S.C. Code Ann. § 61-2-80, § 61-4-540, and § 61-4-520, subject to the Petitioner’s entering a written agreement with the Department requiring the Petitioner to comply with the conditions detailed above. Violation of any of the above-listed conditions shall be deemed a violation of the permit and license.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

May 8, 2008

Columbia, South Carolina