ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (“Court”) upon request for a
contested case hearing pursuant to the provisions of S.C. Code Ann. §§ 61-2-260, 1-23-310, and
1-23-600 (Supp. 2003). Shannon R. Best, d/b/a Bests Road House Food & Spirits, 1107 N. Fifth
St., Hartsville, Darlington County, South Carolina (“Applicant/Petitioner”) seeks an on-premises
beer and wine permit and a sale and consumption (minibottle) license for a restaurant.
Vincent Moore and Sally Ann Moore (husband and wife) (“Parties/Intervenors”), filed a
protest to the application with the South Carolina Department of Revenue (“Department”), citing
concerns about parking and the close proximity of the location to their residence. Because of the
protest, the hearing was required. The Department filed a Motion to be Excused setting forth
that but for the protest, this permit and license would have been issued. However, this motion
was denied. Prior to the hearing, Vincent and Sally Ann Moore filed a motion to intervene with
the Court on November 22, 2004.
The hearing was held on November 30, 2004 at the Administrative Law Court, 1205
Pendleton Street, Columbia, South Carolina. All parties appeared at the hearing. At the
beginning of the hearing, the Court heard the positions of the parties on the motion to intervene
of Vincent and Sally Ann Moore. Since there was no objection, the undersigned granted the
motion. Evidence was then introduced and testimony was given. After carefully weighing all
the evidence, this tribunal finds that the on-premises beer and wine permit and minibottle license
should be granted with restrictions.
FINDINGS OF FACT
Having carefully considering the credibility of the testimony and accuracy of the
evidence presented at the hearing and taking into consideration the burden of persuasion by the
Petitioner and Intervenors, and furthering listening to the understandings and agreements of the
parties, which the court finds fair and reasonable, the court makes the following findings of fact
by a preponderance of the evidence:
1.The Court has personal and subject matter jurisdiction.
2. Notice of the time, date, place, and nature of the hearing was timely given to all
parties.
3.On July 16, 2004, Petitioner applied to the Department for an on-premises beer
and wine permit and sale and consumption (minibottle) license for the premises located at 1107
N. Fifth Street, Hartsville, Darlington County, South Carolina (“location”). The location is not
within the city limits of Hartsville.
4.Petitioner executed a written lease with the owners of the location property. The
location adjoins a lot with a house on it that is rented by Vincent and Sally Ann Moore. Mr. and
Mrs. Moore use this property as their home.
5.Petitioner intends to operate a family restaurant at the location and serve alcoholic
drinks to its customers as they eat their meals. Her husband will serve as its chef.
6.Petitioner is over the age of twenty-one. She has been a legal resident of the state
of South Carolina her entire life and has maintained her principal place of abode in the State of
South Carolina for the same length of time. Petitioner is of good moral character and has never
been convicted of a crime. She has never held a beer and wine permit or a minibottle license.
7.There are no churches, schools, or playgrounds within three hundred feet of the
proposed location.
8.Notice of this application appeared at least once a week for three
consecutiveweeks in the The Messenger, a newspaper of general circulation in the local area
where the Petitioner would operate. Notice of the application was also given by displaying a
sign for a minimum of fifteen (15) days at the location.
9.The location will be a restaurant primarily engaged in the preparation and serving
of meals. It will be open to the general public from 5:00 p.m. to 10:00 p.m. Monday through
Wednesday, and from 5:00 p.m. to 1:00 a.m. Thursday through Saturday. It will not be open for
business on Sundays.
10.Petitioner has already expended approximately nineteen thousand five hundred
dollars ($19,500) on renovating the location and intends to spend additional sums to upgrade the
outside area of the restaurant.
11.Petitioner intends to have background music playing inside the building at the
location. However, she does not intend to have live bands play inside or outside of the location,
nor does she intend to have any other type of music or activities outside at the location.
12.Previously, the location was permitted and licensed for the sale of beer, wine and
alcoholic beverages (liquor). During that time, Vincent and Sally Ann Moore (Intervenors) had
problems with patrons of the location parking at their family home, urinating in their yard,
throwing trash in their yard, and creating loud noise and fighting both on and away from the
location. Because of these problems, law enforcement was often involved.
13.The Intervenors question the suitability of the location, citing parking, trash and
litter, public urination, loud noise issues, as well as concerns for their personal safety.
14.After the parties made their opening arguments at the hearing, the parties met
privately outside of the presence of the Court to discuss the issues in search of a resolution.
After some time, the parties returned and announced that they had reached an agreement. The
Intervenors stated that they no longer objected to the issuance of the permit and license provided
that several restrictions agreed upon by all parties were made a part of the permit and license.
They are as follows:
(1)no bands will play inside or outside of the location;
(2)no music or activities will be played outside at the location;
(3)prior to the opening of the restaurant, a wooden fence, eight feet in height, will be
constructed by Petitioner along the boundary between the location and the property on which the
home of Vincent and Sally Ann Moore sits, for the approximate distance as shown in “pink” on
the survey placed in the record as Court’s exhibit # 1;
(4)prior to the opening of the restaurant, a metal fence, eight feet in height, will be
constructed by Petitioner on the boundary between the location and the property on which the
home of Vincent and Sally Ann Moore sits, for the approximate distance as shown in “green” on
the survey placed in the record as Court’s exhibit # 1;
(5)during each day that the restaurant is open for business at the location, Petitioner
will have the grounds at the location cleaned of any debris and trash and will police the grounds
at the location to ensure all customers of the restaurant park on the grounds of the location and
not on the grounds of the Moore’s family home or in the roadway in front of their home;
(6)any preexisting lights located on the outside of the location, and any lights
subsequently placed on the outside of the location by Petitioner, must be aligned so as to prevent
them from shining directly on the Moore’s property.
15. Based upon the agreement of the parties, which they testified was entered into
freely and voluntarily, the Court finds that the proposed location is suitable for the sale of beer
and wine and mixed alcoholic beverages, subject to the restrictions stated in paragraph 14 above.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2003) grants jurisdiction to the Administrative
Law Court to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2003) sets forth the requirements for the
issuance of a beer and wine permit.
4.S.C. Code Ann. § 61-6-1820 (Supp. 2003) sets forth the requirements for the
issuance of a sale and consumption (“minibottle”) license.
5.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision.
Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of
fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol
permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6.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); see also Doe v. Doe, 324 S.C. 492,
502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of
fact, “has the authority to determine the weight and credibility of the evidence before him”).
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 Woodall v. Woodall,
322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
7.Although "proper location" is not statutorily defined, the Administrative Law
Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (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 a proposed
business and its impact upon the community within which it is to be located. Kearney v. Allen,
287 S.C. 324, 338 S.E.2d 335 (1985).
8.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a license is based on opinions, generalities, and
conclusions or whether the case is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
9.Unless there is 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).
10.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. Rather, they are privileges granted in the exercise of the state’s police power
to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance
of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v.
S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
11.Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (effective June 27, 2003),
authorizing the imposition of restrictions on permits, provides:
Any written stipulation and/or agreement which is voluntarily entered into by an
applicant for a permit or license between the applicant and the Department, if
accepted by the Department, will be incorporated into the basic requirements for
the enjoyment and privilege of obtaining and retaining the permit or license and
shall have the same effect as any and all laws and any and all other regulations
pertaining to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute
sufficient grounds to revoke said license.
12. With the restrictions set forth in finding of fact # 14, as agreed to by all parties, the
Court finds that the Petitioner meets the statutory requirements for holding a minibottle license
and an on-premises beer and wine permit at the proposed location and that the permit and license
must be issued to Petitioner by the Department. Notwithstanding, it shall be Petitioner’s
continuing responsibility during the term of the permit and license to remedy any parking and
noise concerns at the location. Further, it shall be Petitioner’s responsibility to diffuse and
prevent any inflamed relationships between her patrons and the Intervenors. By granting this
application, Applicant assumes these duties and responsibilities and agrees to work in a positive
way to maintain a good relationship with adjoining property owners and lessees.
ORDER
Accordingly, it is hereby
ORDERED that the Department must issue to Petitioner an on-premises beer and wine
permit and a sale and consumption (minibottle) license for the business owned by Petitioner
known as Bests Road House Food & Spirits, located at 1107 N. Fifth Street, Hartsville, South
Carolina, subject to the restrictions as outlined above in finding of fact # 14 and subject to
compliance by Petitioner with all any final inspections by the Department and any other
statutory
requirements; and it is further
ORDERED that the permit and license shall only be issued by the Department upon
Petitioner signing a written statement to be filed with the Department to adhere to the restrictions
as set forth in this order; and it is further
ORDERED that a violation of any of the above restrictions shall be considered a
violation against the permit and license and may result in a fine, suspension, or revocation of the
permit and license.
AND IT IS SO ORDERED.
____________________________________Marvin F. Kittrell
Chief Administrative Law Judge
December 6, 2004
Columbia, South Carolina |
