SC Administrative Law Court Decisions

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of evidence:

1. Petitioner seeks an on premises beer and wine permit and a restaurant liquor by the drink license for its location at 464 N. Nassau Street, Charleston, South Carolina.

2. Petitioner is a Limited Liability Company organized in the State of South Carolina. The Limited Liability Company was formed on February 28, 2008 and is currently in good standing. Petitioner is comprised of Joseph Church and Michael L. Rabin, who are equal owners in the LLC. Michael Rabin is an experienced restaurateur owning several different establishments in the Charleston area.

3. Notice of the application was lawfully posted at the location, and in the Charleston Post and Courier, on April 24, May 1, and 8, 2008, a newspaper of general circulation.

4. The location is near the intersection of N. Nassau Street and Isabella Street in downtown Charleston South Carolina.

5. There are no residences, churches, schools, or playgrounds within five hundred (500) feet of the location.

6. The location will open at 11:00 a.m. Monday through Saturday. The location will be closed on Sunday

7. Music at this location will serve only as background, with no live bands.

8. The location will primarily be a barbecue restaurant and will serve both lunch and dinner on days of operation.

9. Protestant Florence S. Bennett opposes the issuance of the on premises beer and wine permit and the restaurant liquor by the drink license due to her concerns about the welfare of the surrounding community, which is comprised of many elderly residents on fixed incomes. The location was formerly licensed as a private club from 1994-2008 where loud music and behavior problems seemed common. The protestant feels as though the new location will continue the pattern set by the former establishment. Mrs. Bennett further objects to the license being issued because of the location and the proximity to convenience stores who currently sell beer and wine. Mrs. Bennett feels as though the narrow streets of the neighborhood will exacerbate the noise and the traffic that will be generated by the licensing of the location.

CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Court has jurisdiction in this

matter pursuant to S.C. Code Ann. §61‑2‑260 (Supp. 2007).

2. The factual determination of whether or not an application is granted or denied is

usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).

3. The applicant has complied with all the provisions of S.C. Code Ann. §61‑4‑520

regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61‑4‑520(6).

4.                  Licenses and permits issued by the State for the sale of beer, wine, and liquor are

not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

5. Without 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).

6. As the trier of fact, an Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a beer and wine permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

7. Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining 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 a 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 on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8. The Department of Revenue, which is the governmental body charged with

regulating and enforcing violations concerning permits and licenses involving the sale of beer wine and liquor, did not object to the granting of a permit in this case. I find that this location is suitable for the on‑premises beer and wine permit and the restaurant liquor by the drink license.

9. Protestant Florence Bennett’s argument is that the location will have an adverse impact on the community. Protestant is very concerned about the previous operations that the location in question accommodated. Protestant also believes that the proposed location would increase traffic in an area already cramped due to narrow streets that form the surrounding neighborhood. Protestant, however, offered no evidence to support her argument, and “findings…may never be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it.” Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 443, 458 S.E.2d 76, 83 (Ct. App. 1995). Although Protestant very strongly advocated her concerns, she failed to satisfy the burden of proof necessary to justify the denial of the permit at this location. The location is question is an area of rapid growth located in peninsular Charleston, South Carolina. Housing developments as well as many restoration projects are indicators of the growth the area is experiencing.

For the reasons above, the Court finds that the Petitioner has met all of the statutory requirements for an on premises beer and wine permit and a restaurant liquor by the drink license, and authorizes the Department to issue the desired permits.

ORDER

Based upon the above Findings of Fact and Conclusions of Law:

IT IS HEREBY ORDERED that the application for an on premise beer and wine permit by Isabella Street, LLC, d/b/a The Anchor, 464 N. Nassau Street, Charleston, South Carolina must be granted.

AND IT IS SO ORDERED.

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

August 26, 2008

Columbia, South Carolina