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). Rodney B. Pitts, d/b/a Side Pockets (Petitioner or Pitts) seeks an on-premise beer and wine permit and liquor by the drink license for its location at 720 Hazelwood Road, Columbia, South Carolina.

Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit because of a timely filed protest by Rebecca C. Williams.

A hearing on this matter was held at 2:00 p.m. on Thursday, October 30, 2008 at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with the Protestant.

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 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 Protestant.

3. The Petitioner seeks an on-premise beer and wine permit and liquor by the drink license for its location at 720 Hazelwood Road, Columbia, 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 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. Rodney Pitts is the owner and proprietor of the proposed location. Mr. Pitts is seeking the renewal of his on-premises beer and wine permit and liquor by the drink license. The proposed location has been licensed and permitted for approximately 6 years. Soon after opening, the proposed location was cited by SLED for the sale of alcohol to an underage individual. Mr. Pitts has not had a SLED violation since that time. The proposed location is located near two other establishments that are licensed and/or permitted to sell alcohol. The proposed location can accommodate approximately 75 vehicles due in part to arrangements made with neighboring businesses. The proposed location operates Tuesday through Friday from approximately 4:00 p.m. to 2:00 a.m. and on Saturday from approximately 4:00 p.m. to midnight. There is adequate outside lighting. Mr. Pitts has and will continue to train his staff on the rules and regulations governing the sale of alcohol in this state. He will not allow the sale of alcohol to underage individuals and will maintain signs to that effect in the proposed location. Loud music will not be permitted.

7. Rob Taylor testified on behalf of the Petitioner supports the issuance of the license and permit in this matter. Mr. Taylor and his family frequently patronize the proposed location. Mr. Taylor formerly worked as an investigator for the South Carolina Department of Social Services.

8. Eugene DeLoache testified on behalf of the Petitioner and also supports the issuance of the license and permit in this matter. Mr. DeLoache frequents the proposed location with his wife, sons and daughters in law.

9. Rebecca Williams’ protest centers on her concern for the overall welfare of the surrounding community. Ms. Williams has lived in the neighborhood near the proposed location for approximately 41 years. Ms. Williams believes that the residents in the proximate area of the proposed location feel unsafe due to the presence of alcohol. Ms. Williams feels that there are too many establishments in the area that already sell alcohol and that such establishments have turned an otherwise nice neighborhood into a slum. Ms. Williams believes that the presence of alcohol has lead to a significant increase of illicit activity in the area. As such, Ms. Williams stated that many residents are afraid to go outside after dark. Ms. Williams stated that the area around the proposed location is a high crime area and that parking around the proposed location is inadequate to serve the needs of the establishment. Ms. Williams believes that the residents in the area should be allowed to live in peace.

10. Although not recognized as an official protestant, Representative Dr. Jimmy Bales was also afforded an opportunity to voice his concerns about the proposed permit. Dr. Bales stated that the area around the proposed location has become blighted because of establishments that sell alcohol. Dr. Bales stated that the presence of alcohol has disrupted the peace of the area. Dr. Bales asked the court to consider the impact that these establishments have on the lives of the elderly and other residents who live in the community.

11. At the conclusion of the hearing, the Petitioner offered the following stipulations: 1) Petitioner shall not allow excessive noise to emanate from the proposed location. For the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision; 2) Petitioner shall not allow another location to be licensed or permitted to sell alcohol at the area/room immediately adjacent to Side Pockets; 3) Petitioner will not have outside speakers for music or other noise; 4) Petitioner will maintain adequate lighting and will not tolerate loitering.  

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 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 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 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 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 liquor by the drink license to Petitioner for its location at 720 Hazelwood Road, Columbia, 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)                           Petitioner shall not allow excessive noise to emanate from the proposed location. For the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision;

2)                           Petitioner shall not allow another location to be licensed or permitted to sell alcohol at the area/room immediately adjacent to Side Pockets;

3)                           Petitioner will not have outside speakers for music or other noise;

4)                           Petitioner will maintain adequate lighting and will not tolerate loitering.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

November 12, 2008

Columbia, South Carolina