SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. The Petitioner seeks an on-premise beer and wine permit and sale and consumption license for Don Bowls located at 1506 Morninghill Drive, Columbia, South Carolina. A hearing was held before me on October 26, 2004, at the offices of the Administrative Law Court (ALC or Court) 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 parties and the Protestants, I make the following Findings of Fact by a preponderance of the evidence:

General Findings

1.Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Department of Revenue (Department), the Respondents, and the Protestants.

2.The Petitioner seeks an on-premise beer and wine permit and sale and consumption license for Don Bowls, located at 1506 Morninghill Drive, Columbia, South Carolina.

3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2003) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation. Finally, the members of the Don Bowls Restaurant Partnership have no criminal record.

4.The proposed location is not unreasonably close to any school, church or playground.

The Department of Revenue

5.Upon processing the Petitioner's application, the Department of Revenue had two main concerns that resulted in its denial of this permit and license. The first concern was that at the time the Petitioner filed its application, the business did not have a "Grade A" food service license or a menu. Nor was the location equipped with a kitchen or food preparation appliances. The Department subsequently agreed upon a "conditional" approval pending renovations, proper inspections by the Department of Health and Environmental Control and SLED, and the issuance of a "Grade A" food service license. The Department's second concern regarded one of the individuals listed on the partnership agreement. However, as set forth above, that concern was resolved with the modified partnership agreement.

S.C. Mechanical Contractors Association

6.The S.C. Mechanical Contractors Association (Association) has resided next to the proposed location since the 1960s. At the present time, the Association has two full time salaried employees who normally work from 8:30 a.m. to 5:00 p.m., Monday through Friday. The Association's main concern about the proposed location is the changes it could bring to this area. One specific concern is about excess foot traffic generated by patrons walking across its parking lot at night and the safety of its employees and members. Because training sessions and meetings take place at the Association's offices, employees and members are often at the offices late into the evening. Another concern is an increase in criminal activity in the area. The Association had problems with vagrants from Western Inn and Suites when it was under previous management.

The Protestants

7.Protestant/Respondent Lester Bedenbaugh and Protestant Eugene Derrick believe the location is too close to the nearby residences and will promote adverse changes to this community. Their main points of concern are:

a.Noise.Mr. Derrick is especially concerned about the noise coming from the location and the parking lot because his bedroom is only twenty (20) feet from the location. He is also worried about loud talking, loud music or "boom box" noise, and car alarms/horns keeping him up at night.

b.Trash.Mr. Derrick is concerned about patrons leaving trash in the parking lot. In the past, he has tried to pick up the trash left outside the Western Inn and Suites, which is directly behind his property, when it was previously under poor management. He testified that he takes great pride in his yard and the appearance of his property.

c. Parking. This is also a specific concern of Mr. Derrick's because he does not want patrons of the location to park on Morninghill Drive in front of his home or the homes of others. This could result in excess noise in the neighborhood late at night and could also result in the generation of litter.

d.Traffic. Mr. Bedenbaugh expressed concern that traffic through the Skyview Terrace Neighborhood would be increased as a result of patrons of the proposed location seeking a short cut to Broad River Road.

Protestant Captain Robert Plexico of the Richland County Sheriff's Department and the area commander in charge of this jurisdiction appeared on behalf of the Sheriff's Department to express opposition to this permit because it would increase the criminal activity in an area the Sheriff's Department has made considerable efforts to improve. Capt. Plexico also sees parking as a potential problem if it spreads to the Skyview Terrace Neighborhood. Accordingly, Captain Plexico believes permitting this location would be a burden upon law enforcement and would reverse the effort the Sheriff's Department has made in improving the area.

Suitability of the Location

8.The proposed location is situated in Richland County in an area zoned commercial. The Mechanical Contractors Association is directly in front of the proposed location down a slight embankment, fronting on Morninghill Drive. A liquor store, which must close by law at 7:00 p.m., is on the other side of the Mechanical Contractors Association. A vision center and Days Inn are located across Morninghill Drive. Directly behind the Don Bowls building is Western Inn and Suites, a hotel with a significant criminal history. Also, McCary's Bar and Grill, a sports bar restaurant, is located in the general vicinity of the Don Bowls building. It is also noteworthy that Heartbreakers, a “gentlemen's club” with a negative criminal history, is across Bush River Road from this general location.

The Petitioner has been running an auto detailing shop out of a portion of the building to house the proposed location for approximately one year. Before they leased the property, it had laid dormant for about seven (7) years. Since that time, the Petitioner made considerable improvements to the portion of the property from which the detailing shop is operated. Some of these improvements included: cleaning mildew due to flooding from the inside; refurbishing the bathrooms; and resurfacing the location's parking lot. The Petitioner would also have to make extensive renovations to the building in order to operate as a licensed restaurant.

This location has never been licensed for the sale of beer, wine or alcohol. The Petitioner proposes to operate Don Bowls as a sports bar that serves meals to about one-hundred (100) to two-hundred (200) people at fifteen (15) to thirty (30) tables and a bar area. Don Bowls would have televisions to watch sporting events but the Petitioner contends that it would not have loud music. Matthew Zimmerman, of the partners, testified that Don Bowls’ hours of operation would be from 4:00 p.m. with the kitchen closing at 11:00 p.m. and the doors of the location locked at 12:00 a.m. The menu would consist of such items as grilled foods and barbeque. However, as of the date of this hearing, the Petitioner did not have a printed menu.

The proposed location is situated on the fringe of Skyview Terrace Neighborhood. Protestant Derrick's home is only approximately twenty (20) feet from the building and about sixty (60) feet from Don Bowls, door-to-door. Furthermore, nearly one hundred fifty (150) people live in the adjacent Skyview Terrace Neighborhood further up Morninghill Drive. In the past year alone the Richland County Sheriff's Department has responded to over seven hundred (700) calls in the general vicinity of the proposed location. In fact, as a result of the prevalent criminal activity at the Western Inn and Suites, the Richland County Sheriff's Department tried to shut down the Western Inn and Suites as it was previously operated. Only when the Sheriff's Department's efforts to close the business were pressing did the owner replace management. The hotel, as it is currently being operated, has not had any calls in over six (6) months. There has also been vandalism in this area in the past that could be rejuvenated by foot traffic. All in all, this is an area ripe with the potential for criminal activity, as evidenced by the history of the area.

The location has parking for about thirty-seven (37) patrons in the lot directly adjacent to the building. The Petitioner also plans to make use of the twenty-six (26) spaces inside the bay area of the auto detailing shop. However, in order to do so, that building must have no access between the restaurant and the detailing shop, must have a fire wall between the two businesses, and must be inspected and approved by the Fire Marshall. Moreover, even if the Petitioner can use all sixty-three (63) spaces for customer parking, that number would be inadequate for the estimated one-hundred (100) to two-hundred (200) customers. Consequently, there is a reasonable likelihood that the parking would overflow into the area in front of Protestant Derrick's home and the entrance to Skyview Terrace. That occurrence would create problems not only for Mr. Derrick and the Skyview Terrace residents but also exacerbate a difficult law enforcement situation.

Furthermore, the Mechanical Contractors Association's employees and members are often at its offices late into the evening. Overflow parking and foot traffic to the proposed location create a potential safety problem generated by patrons walking across the Association's parking lot at night. Moreover, in light of the recent problems with vagrants from Western Inn and Suites, licensing or permitting the location could create a renewed danger to the safety of the Association’s employees and members.

9.Although Mr. Zimmerman appears to be a quality individual and an excellent businessman, the above evidence establishes that the area of the proposed location is not appropriate for a sports bar and the opening of Don Bowls at this location will result in an overall adverse impact on the community and an increase in criminal activity. Accordingly, the Petitioner’s proposed location is not suitable for an on-premise beer and wine permit and restaurant sale and consumption license.

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. 2003) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Additionally, 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.

2.A beer and wine permit is neither a contract nor a property right. It is, rather, a privilege granted in the exercise of the State's police power “to do what otherwise would be unlawful to do. . . .” Feldman v. South Carolina Tax Comm’n, 203 S.C. 49, 26 S.E. 2d 22 (1943). S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2003) set forth the requirements for the issuance of a beer and wine permit. In particular, Section 61-4-520 (6) vests the Administrative Law Court, as the trier of fact, with the authority to determine if the proposed place of the applicant’s business is a “proper” one. Although “proper location” is not statutorily defined, in making that determination, the Administrative Law Court may consider any evidence that is adverse to the community. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In other words, the Court’s 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 on the community” within which it is to be located. Id. at 337. Additionally, it is 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).

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. 2003) are met. That section requires that a mini-bottle license be granted only to a bona fide business engaged in either the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not only must the principals and applicant be of good moral character but the business must also have a reputation for peace and good order.

S.C. Code Ann. § 61-6-20(2) (Supp. 2003) sets forth:

‘Bona fide engaged primarily and substantially in the preparation and serving of meals’ means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

In order to meet the requirements of Section 61-6-20(2), the location must also meet the requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003). Additionally, Section 61-6-1820 also 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 set forth in S.C. Code Ann. § 61-6-120 (Supp. 2003).

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 181 (1981). The determination of suitability of location is not necessarily a function solely of geography. As set forth above, 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. See Kearney, supra. 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, 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. 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).

“A liquor license or permit may properly be 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 § 121 at 501 (1981). Nevertheless, 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).

5.I find that although the Petitioner seems to be sincere in its efforts to run a peaceful business at this location, I nonetheless find that the Petitioner failed to meet the requirements for holding an on-premise beer and wine permit and restaurant sale and consumption license at this exact proposed location, given the residential nature and the criminal atmosphere of this area and the burden it creates on law enforcement.

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 sale and consumption license be denied.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

December 14, 2004

Columbia, South Carolina