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, Laurie
M. Smith, d/b/a F&R’s Lounge (“Petitioner” or “F&R’s Lounge”), applied
for an on-premises beer and wine permit pursuant to §§ 61-4-500 et seq. and for a restaurant license to sell liquor by the drink pursuant to §§
61-6-1600 et seq. for the location at 107 Willis Street, Latta, South
Carolina 29565. Chief Bobby L. Powers on
behalf of the Latta Police Department and Lutherine
J. Williams (“Protestants”) filed written protests 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 Protestants’ valid public protest. The Department stated in the
Final Agency Determination that other than the timely filed protests, the
Department determined that 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 May 20, 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 subject to the restrictions detailed below.
ISSUE
The
only issue in dispute is the suitability of the location. §§ 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.
The
Petitioner seeks a permit for the retail sale of beer and wine for on-premises
consumption and a license to sell liquor by the drink for the location at 107
Willis Street in Latta, South Carolina 29565. The proposed location is outside
the municipal limits of Latta. Notice of the application was lawfully posted
at the location and was published in a newspaper of general circulation.
Ms.
Laurie M. Smith is the sole proprietor of the business seeking the requested
permit and license. Smith is over the age of twenty-one and has never had a
permit or license to sell beer, wine, or liquor revoked. Smith does not have a
criminal record, and she does not currently owe delinquent state income taxes,
penalties, or interest.
The
Petitioner seeks the requested permit and license for F&R’s Lounge, a bar.
The proposed location has been previously permitted and licensed to sell beer,
wine, and liquor by the drink. It has been previously licensed as a club and
most recently the American Legion held a license for this location. The
proposed location is just outside the municipal limits of Latta. The area in
the vicinity of the proposed location consists primarily of wooded land with an
industrial building to the south of the proposed location and railroad tracks
to the west of the proposed location. There are no churches, schools, or
playgrounds within 500 feet of the proposed location. Parking at the proposed
location is adequate.
Smith
testified regarding the nature of F&R’s Lounge. The proposed hours of
operation for the bar are from 9:00 p.m. until 2:00 a.m. on Fridays and
Saturdays. If the club is not busy Smith testified that she would close
earlier. There is security lighting in the front and back of the building.
Smith and Robert McGill plan to manage the club and there will be two
additional employees to assist with bartending. F&R’s Lounge will offer
food for its customers and has seating for at least forty people. All patrons
must be at least twenty-five years of age to enter and the Petitioner will
check identification at the door. The proposed location will not have any live
music or karaoke, but rather will utilize a compact disc player for music.
Chief
Bobby L. Powers testified in opposition to the application. Based on incidents
that occurred at this location under previous ownership in the early 1990s, Chief
Powers on behalf of the Latta Police Department filed a public protest to the
Petitioner’s permit and license application. Although this location is just outside
of the municipal limits of Latta, Chief Powers stated that his office would
have to assist the local Sherriff’s Department by responding to calls at the
proposed location. Chief Powers testified that the police department received
no complaints while the proposed location was licensed by the American Legion;
however, the licensee prior to the American Legion operated this location as a
club, and there were numerous incidents during that time. Those incidents
included underage drinking, loud music, fights, and, in 1992, the death of a
minor. Further, Chief Powers stated that often fights that began that location
would spill over into the town of Latta requiring the attention of the police
department.
Lutherine
Williams also testified in opposition to the application of F&R’s Lounge.
Williams is active in the community of Latta and serves on the town council.
Williams did not protest the previous licenses issued to the American Legion
because it promised to be a positive influence for the community. However, Williams
testified that this has not been the case and that if the American Legion had
sought renewal of its license for a second time rather than leaving this
location, she would have filed a protest based on recent incidents. Williams
testified that no licensee has ever managed the proposed location properly.
When the location was previously licensed as a club, there were problems with
underage admittance as well as underage drinking. Further, in 1992, Williams’s
fourteen-year old sister was killed at this location after being permitted to
enter and deemed to be over twenty-one. Finally, at the hearing Williams
presented a flier that was circulated in the community of Latta on September 6,
2007 announcing a party at the proposed location of F&R’s Lounge. The
flier announced free food and alcohol upon paying a $7.00 admission fee. Aside
from the fact that the location was not licensed when this flier was
distributed, Williams is concerned because the flier announced that the party
would last “ALL NITE” and further stated that persons “MUST BE 18 TO ENTER, 21
TO PASS OUT.” Although the party never occurred, Williams is concerned that
this flier represents the type of establishment F&R’s Lounge will become if
licensed. Williams stated that she would support a business at this location
that would have a positive impact on the Latta community, but based on the
history of this location, she believes that it is unfit for a club.
In
response to the Protestants’ concerns, Robert McGill offered testimony on
behalf of F&R’s Lounge. McGill stated that he had no ownership interest in
the club but that he assists Smith with paying the bills at the proposed
location. Further, either Smith or McGill are always present during the club’s
proposed hours of operation. With regard to the flier that announced a party
at the proposed location, McGill stated that some local kids asked if they
could have a party at F&R’s Lounge and the Petitioner consented. However,
after he and Smith saw the fliers, the Petitioner did not permit the party to
take place. McGill also stated that upon arriving at the club the first thing
he does is turn the music on and walk outside to ensure that it cannot be heard
from the road. He reiterated that the club will check everyone’s identification
and that only those persons ages twenty-five or over will be permitted to
enter. McGill testified that they are trying to run a good business and give
back to the community.
Martha
Israel also testified in support of the application. Israel is frequently at
the club and stated that it will be a place where adults can come and relax
without the “ruckus” associated with teen and young adult clubs. Israel
manages a convenience store and is familiar with the laws and regulations
governing the sale of alcohol to minors. Israel also testified that the
Petitioner has not sold any alcohol to the public and that the Petitioner has
only permitted private parties or meetings to take place while awaiting the
decision on its permit and license applications.
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). 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 v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276
S.E.2d 308 (1981). 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. § 61-6-1820(3); § 61-6-120. 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. §
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).
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 that the proposed location is suitable for on-premises beer and
wine permit and for a restaurant license to sell liquor by the drink only if
certain conditions are met. The proposed location has a history of incidents
with underage drinking. However, insufficient evidence was presented that the
prior problems are a result of the location, but rather the problems appear to
be directly related to the prior ownership and management of the proposed
location. But based on the history of problems involving minors combined with
the limited police protection available, the imposition of restrictions on the
permit are warranted 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 107 Willis Street,
Latta, South Carolina 29565, 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)
permit the Department to conduct a background check on Robert McGill and issue
the permit and license sought only if it reflects a favorable report;
(3)
permit only persons age twenty-five or over to enter the club;
(4)
agree not to permit live bands to perform at the proposed location; and
(5)
close for business, as the Petitioner has proposed, no later than 2:00 a.m. on
Fridays and Saturdays.
Violation
of any of the above-listed conditions shall be deemed a violation of the permit.
__________________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
June 4, 2008
Columbia, South Carolina
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