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, Robert
Miller, Jr., d/b/a L&J Lounge (“Petitioner”), applied for an on-premises
beer and wine permit pursuant to §§ 61-4-500 et seq. for the location at
4115 Maple Street in Loris, South Carolina, 29569. Interim Police Chief Karen
Baker (“Protestant” or “Chief Baker”) filed a written protest to the
Petitioner’s application on behalf of the Loris Police Department. Respondent
South Carolina Department of Revenue (“Department”) denied the application
pursuant to § 61-4-525 due to the receipt of the Protestant’s valid public
protest. The Department determined that, other than the timely filed protest
regarding the suitability of the location, 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 May 1, 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 the restrictions detailed below.
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 Protestant.
The
Petitioner seeks a permit for the retail sale of beer and wine for on-premises
consumption for the location at 4115 Maple Street in Loris, South Carolina, 29569.
The proposed location is in Horry County. Notice of the application was
lawfully posted at the location and was published in a newspaper of general
circulation.
Mr.
Robert Miller, Jr., (“Miller”) is the individual seeking the requested permit.
Miller is over the age of twenty-one and lives in Conway, South Carolina. Miller
plans to manage the proposed location himself, although he has other employment
during the daytime. Miller testified that the proposed location would be open from
9 a.m. until 6 p.m. Mondays through Thursdays, and from 9 a.m. until midnight on
Fridays and Saturdays. The proposed location will operate solely as a bar,
with a pool table and video games. Miller also plans to provide music via a
deejay and live bands. The area in the vicinity of the proposed location is
primarily residential, with one restaurant.
Miller’s
mother, Elizabeth Smith (“Smith”), testified that she will work in the proposed
location during the daytime hours while Miller is at his daytime job. She
testified that she will meet the beer trucks and serve any patrons during that
time period. She further testified that she will have no managerial power over
the establishment, but that she will simply watch over the business while her
son is at work—from approximately 9 a.m. to 6 p.m. on weekdays.
Interim
Chief Baker, on behalf of the Loris Police Department, filed a public protest
to the Petitioner’s application. Chief Baker has worked for the Loris Police Department
for the past seven years. She testified that most of the nearby residents are
elderly and that the area surrounding the proposed location is known for drug
activity. Chief Baker stated that if loud music and alcohol are provided at
the proposed location they would likely draw crowds and exacerbate the drug
problems. Chief Baker testified that the Loris Police Department is small and
cannot adequately handle the large crowds that will likely be present at the
proposed location. The proposed location itself is small; Chief Baker appeared
concerned that crowds will gather on the streets outside the bar. Chief Baker
also stated that there are only about five parking spaces for the bar. Chief
Baker further testified that the residents in the area constantly called the
police department regarding the noise from the proposed location under previous
owners.
Smith’s
testimony indirectly corroborated Chief Baker’s regarding criminal activity in
the area with concerns about vandalism, burglary, and references to “gigolos”
and “hoodlums” in the neighborhood on the streets.
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 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 that the proposed location is suitable for a beer and wine permit
only if certain conditions are met. The
proposed location is in a primarily residential area and 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). This fact, combined with the
drug problems in the area and the limited police protection available, warrants
the imposition of restrictions on the permit to protect the health, safety, and
peace of nearby residents, as well as employees of the local police department. See § 61-2-80.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that, with the following restrictions, the Petitioner
meets all of the statutory requirements for an 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 4115 Maple Street
in Loris, South Carolina, 29569, in accordance with § 61-2-80 and § 61-4-540,
subject to the Petitioner’s entering a written agreement with the Department
requiring the Petitioner to:
(1)
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;
(2)
not permit live bands to perform at the proposed location;
(3)
take reasonable measures to ensure that there is adequate parking and that bar
patrons do not park without permission on private property not owned or leased
by the Petitioner;
(4)
take reasonable measures to prevent loitering outside the bar and illegal
activity on the licensed premises; and
(5)
close for business, as the Petitioner has proposed, no later than 6:00 p.m. on
Sundays through Thursdays and no later than midnight on Fridays and Saturdays.
Violation
of any of the above-listed conditions shall be deemed a violation of the permit.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
June 3, 2008
Columbia, South Carolina
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