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 by 2008 S.C. Act No. 334) and S.C. Code Ann. § 61-2-260 (Supp. 2007). The petitioner, Studio 176, LLC,
d/b/a Studio 176 (“Petitioner” or “Studio 176”), applied for an on-premises
beer and wine permit pursuant to §§ 61-4-500 et seq. for the location at
209 Whitlock Lake Road in Jonesville, South Carolina, 29353. David A. Lee and
Debra Lee (“Protestants”) filed a written protest 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 protest and because the Petitioner failed to submit
an affidavit of publication.
After
notice to the parties and the Protestants, the court held a hearing on this
matter on August 20, 2008. Both parties and the Protestants 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 granted, subject to certain restrictions.
ISSUE
At
the hearing, both parties concurred that the affidavit of publication
requirement had been satisfied. Thus, the only issue in dispute is the
suitability of the location. § 61-4-520(5)-(6).
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.
Evidence
was presented regarding all of the relevant statutory criteria. Notice of the
time, date, place, and subject matter of the hearing was given to all parties
and the Protestants.
The
Petitioner seeks a permit for the retail sale of beer and wine for on-premises
consumption for the location at 209 Whitlock Lake Road in Jonesville, South
Carolina, 29353. The proposed location is in a rural area of Union County.
The area immediately surrounding the proposed location is primarily
residential, and the nearest residence is twenty-five feet away.
Mr.
Kashif Eison (“Eison”) is the sole member of the business seeking the requested
permit. Eison is over the age of twenty-one and is a resident of South
Carolina. Eison has no criminal record and has never had a beer and wine
permit or liquor license revoked.
Eison
plans to manage the proposed location himself, which will operate solely as a
bar for members only. Eison plans to screen potential members and allow only
individuals who are over the age of twenty-one and of good moral character to
become members. Eison leases the proposed location from an individual who owns
land adjacent to the proposed location, including the house that is twenty-five
feet away. Eison testified that the proposed location would be open from 7
p.m. until midnight on Wednesdays, and from 7 p.m. until 2 a.m. on Thursdays
and Fridays. Eison plans to hire a security company that is registered with
the South Carolina Law Enforcement Division to patrol the parking lot and check
IDs. Eison stated that he is also planning to rent out the proposed location
for private events.
David
A. Lee and Debra Lee testified in opposition to the application. They live
down the street from the proposed location. Mr. Lee testified that there have
been problems with drug activity and violence in the area. Also, Mr. Lee was
concerned about possible noise from the club that might prevent him from
sleeping. Furthermore, Mr. Lee testified that there is a lot of foot traffic
on that road, and that there have been car accidents in the vicinity. Mrs. Lee
testified about the number of children living in the area. She was also
concerned about the affect the proposed location might have on local property
values.
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).
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. 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. § 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.
Additionally,
consideration can be given to the impact the issuance of the permit will have
on law enforcement. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191
(1973); Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451,
211 S.E.2d 243 (1975). Evidence that the granting of a permit will place a
strain upon police to adequately protect the community must be weighed. Moore
v. S.C. Alcoholic Beverage Control Comm’n, 308 S.C. 160, 162, 417 S.E.2d
555, 557 (1992). Denial 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, 263 S.C. at 451,
211 S.E.2d at 243. Another pertinent factor is whether police have been
summoned to the scene on prior occasions when licensed to another party. Schudel
v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308
(1981). It is relevant whether the location is near other locations that have
either been a constant source of law enforcement problems or are locations
where young people congregate and loiter. Palmer, 282 S.C. at 250, 317
S.E.2d at 478.
Similarly,
consideration can be given to whether the location is heavily traveled or
creates a traffic danger. Id. 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).
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 Studio 176, 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 application
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 license or 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.
c. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds the proposed location to be suitable as long as certain conditions
are met. Evidence was presented that there have been problems with drug
activity and automobile accidents in the vicinity. Furthermore, evidence was
presented that numerous children live in the area. The court finds, based on
the evidence presented, that restrictions are necessary to ensure that the
location will not endanger or disturb the community.
The proposed location is not located near any
church, school, or playground, although it is close to several residences. See S.C. Code Ann. § 61-4-520(6) (Supp. 2007); Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972); Byers v. S.C. Alcoholic Beverage
Control Comm’n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991) (holding that
proximity to a residence is by itself sufficient to support a finding of
unsuitability and denial of a permit). The court finds that for the location
to remain a suitable one, the Petitioner must: (1) take reasonable measures to
prevent loitering, drug usage, and other illegal activity; (2) provide adequate
trash receptacles near the exits of the bar and take measures to ensure that
patrons do not leave the bar with beer bottles or trash that could potentially
be thrown on adjacent property; (3) perform regular cleanup after closing each
business day before daylight; (4) take reasonable measures to ensure that music
or noise from the bar and its immediately surrounding areas is not discernibly
audible from the nearest residence to the proposed location when the doors and
windows of the residence are closed; (5) retain a licensed and bonded,
effective security company; and (6) limit the days and hours of operation to
those proposed, except that the proposed location shall close no later than
midnight on any day that precedes a day when local schools are in session.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that, with the above-noted restrictions, the Petitioner
meets all of the statutory requirements for the on-premises beer and wine
permit. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an
on-premises beer and wine permit for the premises located at 209 Whitlock Lake
Road in Jonesville, South Carolina, 29353, in accordance with S.C. Code Ann. §
61-2-80, § 61-4-540, and § 61-4-520, subject to the Petitioner’s entering a
written agreement with the Department requiring the Petitioner to comply with
the conditions detailed above. Violation of any of the above-listed conditions
shall be deemed a violation of the permit and license.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
September 17, 2008
Columbia, South Carolina
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