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. §
1-23-600(A) (as amended 2008) and S.C. Code
Ann. § 61-2-260 (Supp. 2007). The petitioner, James R. McCollum, d/b/a Blue
Moon Night Club (“Petitioner”), applied for an on-premises beer and wine permit
pursuant to §§ 61-4-500 et seq. for the location at 3101 Harllees Bridge
Road in Hamer, South Carolina, 29547. Gerald and Myrtle Berry, Thad and Judy
Campbell, and Reverend David Greene (“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 further denied the application pursuant to § 61-4-540
because the Petitioner failed to provide a complete application, and pursuant
to § 61-4-520(5) because the Department determined that the proposed location
was unsuitable due to safety concerns.
After
notice to the parties and the Protestants, the court held a hearing on June 10,
2008. All parties 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 denied.
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.
The
Petitioner seeks a permit for the retail sale of beer and wine for on-premises
consumption for the location at 3101 Harllees Bridge Road in Hamer, South
Carolina, 29547. The proposed location is in a rural area of Dillon County.
Notice of the application was lawfully posted at the location and was published
in a newspaper of general circulation.
James
Randy McCollum (“McCollum”) is the individual seeking the requested permit and
license. He is over the age of twenty-one and has never had a permit or
license to sell beer, wine, or liquor revoked. McCollum has no criminal
record.
The
area in the vicinity of the proposed location has several residences. Further,
the area surrounding the proposed location has experienced significant problems
with safety and illegal activity, including shootings and gang activity. There
have also been numerous incidents of intoxication, despite the fact that there
is currently no alcohol license for the proposed location. At the hearing, the
Department offered into evidence two incident reports from the Dillon County
Sheriff’s Office. The first incident involved a fatal shooting due to rival
gang activity outside the proposed location. The second incident involved the
discharge of firearms immediately outside the proposed location. McCollum’s
nephew was involved in this incident.
The
Department provided evidence at the hearing that the Petitioner failed to
submit all the information requested by the Department. First, McCollum failed
to provide proof of valid access to the proposed location, such as a bill of
sale, deed of distribution, or a lease. The information in the Department’s
file indicates that the property was formerly owned by McCollum’s father. McCollum’s
father has since died, leaving twenty heirs who are eligible to inherit the
property. No evidence was presented that McCollum, as only one of twenty heirs
to the property, has a leasehold or other interest in the property that would
permit him to operate the establishment at the proposed location. Despite
repeated requests by the Department, McCollum failed to provide such
documentation to the Department during the application process or present
evidence as to this issue at trial. Additionally, McCollum failed to sign his
otherwise complete Consent and Waiver Form, and in his application provided
many different addresses for the proposed location.
McCollum
testified that other family members have operated the business in the past, and
that he has been involved with the business only for the past two years. He
also testified that family members assist him in the business. Evidence was
presented that McCollum provided a criminal background check to the Department,
and that the Department determined that McCollum has no outstanding tax
liability. At the hearing, McCollum testified that he had verified the correct
address to be 3101 Harllees Bridge Road in Hamer, South Carolina 29547.
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 § 1-23-600(A) (as amended by 2008 S.C. Act No. 334) 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) (Supp. 2007).
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 v. S.C. Alcoholic Beverage Control Comm’n,
276 S.C. 138, 276 S.E.2d 308 (1981). 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.
Denial
of a permit 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 v. S.C. Alcoholic
Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975). 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).
Additionally,
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 Blue Moon Night Club, 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.
3. Other Requirements
Before
the Department can grant a beer and wine permit, the applicant must submit a
complete application to the Department. See S.C. Code Ann. § 61-4-500
(Supp. 2007) (“A person engaging in the business of selling beer, ale, porter,
wine . . . must apply to the department for a permit to sell these beverages.”).
The application must include:
(1) the
name, address, date of birth, race, and nationality of the person applying for
the license or permit;
(2) the
exact location where the business is proposed to be operated;
(3) a
description of the type of business to be operated;
(4) whether
the applicant or an owner of the business has been involved in the sale of
alcoholic liquors, beer, or wine in this or another state and whether he has
had a license or permit suspended or revoked;
(5) whether
the applicant has been a legal resident of this State for at least thirty days
before the date of application, and has maintained his principal place of abode
in the State for at least thirty days before the date of application;
(6) other information required by the department to
determine if the application meets all statutory requirements for the license
or permit and to determine the true owners of the business seeking the license
or permit.
§ 61-2-90 (Supp. 2007). Furthermore, a
“misstatement or concealment of fact in an application is a sufficient ground
for the revocation of the permit.” § 61-4-540 (Supp. 2007).
4. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds that the Petitioner’s application should be denied. McCollum has
met many of the statutory requirements
contained in §§ 61-4-500 et seq. to obtain a permit for beer and wine. Although
he did not supply all of the information requested by the Department, he
appears to have provided all that is required by the statute. See S.C.
Code Ann. § 61-2-90 (setting forth the required contents of an application). The
requested information regarding access to the premises does not appear to
relate to any statutory requirement. Further, McCollum provided evidence as to
the correct physical address of the proposed location at the hearing.
Accordingly, the court finds that McCollum’s application was not incomplete
such that the requested permit should be denied on that basis.
Nonetheless, the court concludes that the
Petitioner has failed to produce sufficient evidence that the proposed location
is a suitable one. McCollum, as the party with the burden of proof to
show eligibility for the permit sought, failed to establish that he meets all
of the statutory requirements for a permit. The evidence presented shows that
the proposed location has experienced repeated violent activity, including such
serious offenses as assault, the discharge of firearms, and a fatal shooting.
In determining the suitability of a location, the law permits the court to
consider criminal activity in the surrounding area. Palmer, 282 S.C. at
250, 317 S.E.2d at 478. Here, the fatal shooting and the other firearms incident
occurred on the premises of the proposed location. 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.”). Furthermore, intoxication has
been a problem at the as-yet unlicensed proposed location. See Roche,
263 S.C. 451, 211 S.E.2d 243 (holding that “constant
problems with public intoxication” was a grounds for denial). Moreover,
McCollum testified that he is assisted in the business by family members. One
of those family members was involved in a serious criminal incident on the
premises. Although McCollum testified that the business has been run by other
family members in the past, there is no evidence in the record indicating
whether the proposed location has been previously licensed to sell beer and
wine. Even if it had, however, the criminal activity and the nature of the
operation of the business show that the proposed location is less suitable for
licensure than in the past. See Taylor, 261 S.C. at 172, 198 S.E.2d at 802. The court therefore
finds that the violent nature of the criminal activity at the proposed location
make it unsuitable for the permit sought. Palmer, 282 S.C. at 250, 317
S.E.2d at 478.
Further,
the nature and operation of the proposed business and its impact on the
community within which it is to be located weigh against the granting of a
permit. Kearney, 287 S.C. at 326-27, 338 S.E.2d at 337. The neighborhood
surrounding the proposed location is rural but residential. The court finds
that the crime in the area presents a danger to the nearby residents. The
proximity of this club to the residences nearby renders it an unsuitable
location. See § 61-4-520(6) (permitting the department to consider,
among other factors, as indications of unsuitable location, the proximity to
residences, schools, playgrounds, and churches); Palmer, 282 S.C. at
250, 317 S.E.2d at 478 (“The findings . . . that this
location is situated in a rural residential area, in close proximity to other
residences, and that there have been law enforcement problems in the area,
support the conclusion that the location is unsuitable for the sale of cold
beer and wine.”); Roche, 263 S.C. 455, 211 S.E.2d 245 (holding
that law enforcement problems in the area as well as the residential nature of
the neighborhood rendered the proposed location unsuitable). A home is located
across the street and three other residences are located within 1500 feet of
the club. All of these factors together make the proposed location unsuitable
for the sale of beer and wine. See § 61-4-520(6).
In
short, after considering the individual and combined effect of all of these
factors and reviewing the totality of the circumstances, the court finds that
granting the requested permit would have an adverse effect on the community. The proposed location is therefore not a proper one and is unsuitable. See §§ 61-4-520(5)-(6). Accordingly, the Petitioner has not met all of the
requirements for the issuance of a beer and wine permit. See §§ 61-4-500 et seq.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, it is hereby
ORDERED that the Department’s decision to deny the Petitioner’s application for an
on-premises beer and wine permit for the premises located at 3101 Harllees
Bridge Road in Hamer, South Carolina 29547 is upheld.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
July 21, 2008
Columbia, South Carolina
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