SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2007) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2007). Pazazz of Camden, Inc., d/b/a Pazazz (Petitioner or Pazazz) seeks an on-premise beer and wine permit and nonprofit private club liquor by the drink license for its location at 2003 Jefferson Davis Highway, Camden, South Carolina.

Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit because of timely filed protests by Leonard Caldwell and Sheriff Steve McCaskill.

A hearing on this matter was held at 2:00 p.m. on Monday, September 29, 2008 at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with the Protestants.

After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s on-premises beer and wine permit and nonprofit private club liquor by the drink license shall be granted.

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 persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:

1. The ALC has personal and subject matter jurisdiction.

2. Notice of the time, date, place and subject matter of the hearing was timely given to all parties and the Protestants.

3. The Petitioner seeks an on-premise beer and wine permit and nonprofit private club liquor by the drink license for its location at 2003 Jefferson Davis Highway, Camden, South Carolina.

4. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2007) and S.C. Code Ann. § 61-6-1820 (Supp. 2007) concerning the requirements for licensure and permitting are established. Furthermore, the proprietors have not had a permit or license revoked within the last two (2) years and are of sufficient moral character to receive a beer and wine permit and nonprofit private club liquor by the drink license. Public notice of the application was also lawfully posted at the location and in a newspaper of general circulation.

5. Pursuant to S.C. Code Ann. § 61-3-440 (Supp. 2007) and S.C. Code Ann. § 61-6-120 (Supp. 2007), there are no churches, schools, or playgrounds within the minimum required distance of the location.

6. Travis Jiles testified on behalf of the Petitioner in this matter. Mr. Jiles is a founding member and president of Pazazz and also sits on the board of directors. Mr. Jiles and his fellow members have invested over two hundred thousand dollars for renovations to the proposed location. Renovations include extensive sound-proofing improvements such as insulated walls and windows. The maximum occupancy limit for the proposed location is 200 persons.

The proposed location is zoned commercial and is located on a four lane highway. It is immediately surrounded by other commercial entities and is also bordered by residences. Other businesses in the immediate vicinity are permitted to sell beer and wine. There is a six foot (6’) high privacy fence to the rear of the property. There is other fencing to one side of the proposed location. There are thirty-three parking spaces on the property of the proposed location. The Petitioner has an agreement with an adjacent business (Kangaroo) which will allow patrons to use its property for parking, bringing the total number of available spaces up to approximately seventy-five. Patrons of the proposed location will not be allowed to park on any other properties. A parking attendant will be employed to insure that patrons of the proposed location park only in designated spaces. Towing will be used to enforce parking restrictions.

Mr. Jiles is not aware of any significant crime in the area. The hours of operation are as follows: Monday-Thursday: 4:00 p.m. to 11:00 p.m.; Friday-Saturday: 4:00 p.m. to 1:30 a.m. The parking lot is well lit. Additionally lighting will be provided should the permit and license be granted.

7. Mr. Caldwell owns and operates Leonard’s Body Shop which sits adjacent to the proposed location. His opposition to the issuance of the permit centers on his concern for his customers. Specifically, Mr. Caldwell is concerned that patrons of the proposed location will use his property for parking. He feels that parking issues may intimidate his customers and force him to invest in fencing to protect his property.

8. Chief Deputy James Tomley spoke on behalf of Sherriff McCaskill. Mr. Tomley stated that the proposed location would not be a good fit for the community as there are no other entities which allow on-premises consumption of alcohol in the area. He also expressed concern over the safety issues presented by the proximity of the proposed location to the highway.

9. Although not recognized as an official protestant, Ed Corey of the Camden Police Department was also afforded an opportunity to voice his concerns about the proposed permit. Mr. Corey indicated that Mr. Jiles has been involved with various altercations relating to his involvement and/or operation of other clubs in the area. Overall, Mr. Corey is concerned about the general safety and welfare of the surrounding community.

10. After the conclusion of the hearing, the Petitioner has offered the following stipulations: 1) The Petitioner will control and monitor sound levels on its licensed premises so as to ensure that nearby residents and businesses are not negatively impacted; 2) Petitioner will ensure that its patrons do not park on the property of Leonard's Body Shop and will post a notice on its premises advising its patrons that parking on the Leonard's premises will result in the towing of any vehicle so parked; 3) It will police its premises, and that of adjacent businesses, upon closing each day and remove any litter that might have been discarded by its patrons. 

CONCLUSIONS OF LAW

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

1.         S.C. Code Ann. § 1-23-600 (Rev. 2005) 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. 2007) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2.         “[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).

3.         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).

4.         S.C. Code Ann. § 61-4-520 (Supp. 2007) 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. S.C. Code Ann § 61-4-520(6)-(7) (Supp. 2007).

5. S.C. Code Ann. § 61-6-1820 (Supp. 2007) sets forth the basic criteria for the issuance of a nonprofit private club liquor by the drink license. Although the suitability of the proposed location is not listed in Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6.         Although “proper location” is not statutorily defined, 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).

7.         The determination of suitability of location is not necessarily a function solely 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 v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

8.         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, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

9. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). 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 permits and licenses to sell alcoholic beverages using broad but not unbridled discretion. Byers v. S.C. Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

10. 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).

11. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding an on-premises beer and wine permit and nonprofit private club liquor by the drink license. Although cognizant of the Protestants’ concerns, I conclude that the proposed location is a proper one for granting the permit and license. I find that the proposed location is suitable for Petitioner to operate with an on-premises beer and wine permit and nonprofit private club liquor by the drink license and that Petitioner’s operations will not be detrimental to the welfare of the surrounding community.

12.       In reaching a decision in this matter, this tribunal is constrained by the record before it and by the applicable statutory and case law. Here, Petitioner meets all of the statutory and regulatory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit and nonprofit private club liquor by the drink license. There has not been a sufficient evidentiary showing that the location is unsuitable for Petitioner’s proposed beer, wine, and liquor sales or that the issuance of the permit would have an adverse impact on the surrounding community.

ORDER

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

ORDERED that the Department resume processing Petitioner's application and issue an on-premise beer and wine permit and nonprofit private club liquor by the drink license to Petitioner for its location at 2003 Jefferson Davis Highway, Camden, South Carolina upon payment of the proper fees and costs.

IT IS FURTHER ORDERED that Petitioner’s license and permit be made subject to the following conditions:

1)                           The Petitioner will control and monitor sound levels on its licensed premises so as to ensure that nearby residents and businesses are not negatively impacted;

2)                           Petitioner will ensure that its patrons do not park on the property of Leonard's Body Shop and will post a notice on its premises advising its patrons that parking on the Leonard's premises will result in the towing of any vehicle so parked;

3)                           Petitioner will police its premises, and that of adjacent businesses, upon closing each day and remove any litter that might have been discarded by its patrons. 

IT IS FURTHER ORDERED that, if possible, any further contested alcohol license and permit applications at 2003 Jefferson Davis Highway, Camden, South Carolina, be assigned to the undersigned because of his knowledge of the prior application there.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

October 1, 2008

Columbia, South Carolina