SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2006, as amended by 2008 S.C. Act No. 334) and S.C. Code Ann. §§ 61-2-260 & 61-6-185 (Supp. 2007) for a contested case hearing. Petitioner is seeking an on-premises beer and wine permit and restaurant liquor by the drink license for Schooners Bar & Grill. After proper notice, a hearing was held on July 9, 2008 at the offices of the ALC in Columbia, South Carolina.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of proof upon the Petitioner, the Respondent and the Protestants, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner seeks an on-premises beer and wine permit and restaurant liquor by the drink license for Schooners Bar & Grill, located at 6226 Bush River Road, Suite C, Columbia, South Carolina. Notice of Petitioner’s application was lawfully posted at the location and published in a newspaper of general circulation.

2. Schooners Bar & Grill is located in a commercial strip mall that is adjacent to several other businesses on Bush River Road. However, the strip mall is also in close proximity to the Brittany II subdivision, an upscale neighborhood. A row of trees separates the rear portion of the strip mall from the Brittany II subdivision.

3. David Flowers is the owner of Schooners Bar & Grill. Mr. Flowers is thirty-three years old and has been a resident of South Carolina for four years. He has previously managed at least two different restaurants that sold alcohol. Therefore, the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2007) concerning the residency and age of the applicant are properly established. Furthermore, there is no evidence that David Flowers has had a permit or license revoked within the last two (2) years. Mr. Flowers appears to have sufficient moral character to receive a permit and license under Sections 61-4-520 and 61-6-1820. Schooners Bar & Grill also appears to have reputation for peace and good order in its community. Finally, public notice of the application was also lawfully posted both at the location and in a newspaper of general circulation.

4. No evidence was presented that the proposed location is within five hundred (500) feet of any church, school or playground.

5. The proposed location has previously been permitted for on-premises beer and wine sales and liquor by the drink sales. However, under previous management, the Lexington County Sheriff’s Department was called to the location on at least five different occasions between May 11, 2007 and July 2, 2007. In fact, Sandra Matthews, the President of Mattsa Properties, LLC, which owns the building in which the proposed location is located, evicted the previous tenant of the location due to the tenant’s involvement in drug-related activities. Ms. Matthews subsequently selected Petitioner, over several other applicants, to be the new tenant of the location based on his prior restaurant experience, the reputation of the other two individuals providing funding to Schooners Bar & Grill, and her belief that Petitioner would operate Schooners Bar & Grill in a law-abiding manner.

6. Respondent received several timely-filed protests to Petitioner’s application. But for those protests, Respondent would have granted the permit and license subject to a final inspection to ensure that the location met the restaurant requirements contained in S.C. Code Ann. §§ 61-6-1610 & 61-6-1820 (Supp. 2007) and 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2007).

7. John Soles and John Eckstrom, both residents of the Brittany II subdivision, testified in opposition to the application. Mr. Soles’ home is 186’ from the location. His testimony established that, under previous management, the location had stayed open until 5:00 a.m. and that residents of the community were disturbed by the excessive noise emanating from the location. Nevertheless, in his opinion, it would be appropriate for the location to be open during the same hours as typical chain restaurants in the area are open as long as it is operated as a restaurant.

John Eckstrom’s testimony established that another location such as the one previously operated by the prior licensee/permitee will have such an adverse impact on the community that it will lower the property values of the homes located in the Brittany II subdivision. Therefore, having an establishment that sells alcohol, beer and/or wine open until the early hours of the morning would not be conducive to the family-friendly nature of the neighborhood.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. S.C. Code Ann. § 61-2-260 (Supp. 2007) also grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. S.C. Code Ann. § 61-4-520 (Supp. 2007) sets forth the requirements for the issuance of a beer and wine permit. Section 61-4-520(5) provides that the location of the proposed place of business must be a proper one. Furthermore, Section 61-4-520(6) provides that in making that determination, the Department, and thus the ALC, “may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches.”

3. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2007) are met. Section 61-6-1820(1) provides that the applicant may receive a license upon the finding that “[t]he applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.” In addition, a license for the sale and consumption of alcoholic beverages must not be granted unless an individual applicant is of good moral character or, if the applicant is a corporation or association, it “has a reputation for peace and good order in its community, and its principals are of good moral character.” S.C. Code Ann. § 61-6-1820(2) (Supp. 2007). Section 61-6-1820(3) further provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, or playgrounds as forth in S.C. Code Ann. § 61-6-120 (Supp. 2007). Section 61-6-120(A) requires that a location outside of a municipality licensed to sell liquor must be a minimum of five hundred (500) feet from any church, school, or playground. The distance is determined by following “the shortest route of an ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school or playground. . . .”

4. 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 118 (1981). The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operation of the 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). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, 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 is a significant consideration. Smith v. Pratt, 258 S.C. 504; Taylor v. Lewis, 261 S.C. 168.

“A liquor license or permit may also 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). Nevertheless, if the statutory criteria are satisfied, a permit or license should not be denied upon these grounds without sufficient evidence of an adverse impact on the community. Moreover, the fact that a person objects to the issuance of a permit or license does not establish a sufficient reason by itself to deny the application. See 48 C.J.S. Intoxicating Liquors § 166 (2004).

5. Here, the evidence established that the proposed location is suitable for a business that is operated as a restaurant. However, Petitioner failed to establish that this location would not continue to be operated in the manner that previously adversely effected the community. In reaching this conclusion, I do not find that Petitioner would operate a business at this location in a manner that would adversely impact on the community. In fact, it appeared that Petitioner’s business could have been an asset to the community. However, despite the evidence concerning the detrimental impact to the community of the previous location, Petitioner offered no evidence regarding 1) the hours of operation of the proposed establishment; 2) the nature and character of the business that would be opening at the proposed location; or 3) the hours of operation of the business. The Court was therefore left to speculate concerning the operation and character of Petitioner’s business. In the face of the direct evidence concerning the adverse impact of the previous location, I thus find that based on the evidence presented, Petitioner failed to establish the suitability of his business at the location.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Petitioner's application for an on-premise beer and wine permit and restaurant liquor by the drink license be denied.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

July 17, 2008

Columbia, South Carolina