ORDERS:
FINAL ORDER AND DECISION
This
matter comes before the Administrative Law Court (“ALC” or “Court”) for a
contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq.
(2005 & Supp. 2007), 61-2-260 (Supp. 2007), 61-4-525 (Supp. 2007) and 61-6-1825
(Supp. 2007). Kathy Lawson, d/b/a Kathy’s Bar & Grill (“Petitioner”) seeks
a renewal of its on-premises beer and wine permit and seeks an initial liquor
by the drink license for its location at 1120 S. Lee Street, Batesburg, South Carolina (“location”). Protestants Tammie W. Covington, Steve Padgett, James M.
Keisler, Grace H. Keisler, Ellis B. Shealy, Jennie Burkett, Jason Herbert,
Leonell B. Hallman, Melvin Hallman, Franklin D. Keisler, Norma Benton, Martin
Jackson, and Margie Jackson (collectively, the “Protestants”) filed protests to
the application with the South Carolina Department of Revenue (“Department”).
Because of the protests, the hearing was required.
A
hearing in this matter was held on February 25, 2009, at the offices of the ALC
in Columbia, South Carolina. Both parties and the Protestants appeared at the
hearing.
Evidence was introduced and testimony was given. After carefully weighing all
the evidence, I find that Petitioner’s request for a renewal of its on-premises
beer and wine permit and application for liquor by the drink license should be
granted contingent upon the stipulations and restrictions set forth below.
FINDINGS
OF FACT
Having
observed the witnesses and reviewed the exhibits presented at the hearing and
closely passed upon their credibility, and having taken into consideration the
burden of persuasion by the parties, I make the following Findings of Fact by a
preponderance of the evidence:
1. Kathy Lawson (“Mrs.
Lawson”) seeks a renewal of the on-premises beer and wine permit and seeks an
initial liquor by the drink license for Petitioner Kathy Lawson, d/b/a Kathy’s
Bar & Grill, located at 1120 S. Lee Street, Batesburg, South Carolina. The
location is situated outside the city limits.
2. Mrs.
Lawson is over the age of twenty-one (21) and of good moral character. She is
a legal resident of the State of South Carolina and has maintained her principal
place of abode in this state for at least thirty (30) days prior to making this
application. Additionally, she currently holds a beer and wine permit for the
location, and she has never had this permit suspended or revoked.
3. Notice
of the application was lawfully posted at the location and in a newspaper of
general circulation.
4. The location is a building
situated on South Lee Street in Batesburg, South Carolina. There are no
establishments nearby that serve beer, wine, and liquor.
5. Approximately six
years ago, Mrs. Lawson began operating the location as a pool hall and produce
stand. During that time, the location operated with an on-premises beer and
wine permit in the pool hall and operated with an off-premises beer and wine
permit in the produce stand.
6. In 2004, Mrs.
Lawson applied to the Department for a sale and consumption (minibottle)
license for the location. Several protests were filed with the Department, and
as such, the Department denied the application for the license. Mrs. Lawson
appealed to the ALC, and the matter was docketed as Docket No.
04-ALJ-17-0414-CC. The undersigned was assigned to the matter. A hearing was
held at the ALC on January 25, 2005, and continuing on January 26, 2005. Based
upon the arguments and evidence presented at the hearing, the Court denied Mrs.
Lawson’s request for the sale and consumption license. At that time, the Court
was concerned about several issues with regard to the location: the level of noise;
the amount of trash thrown onto neighboring property; the increase in traffic
along South Lee Street; and the safety of Petitioner’s patrons and neighboring
residents.
7. Subsequent to
2005, Mrs. Lawson had a full kitchen installed at the location, and she
currently operates the location as a restaurant and bar. The restaurant’s
kitchen has all stainless steel appliances including a grill, two (2)
freezer/refrigerators, stove, deep fryer, and a preparing refrigerator for
storing various condiments. The location currently has a Grade “A” retail food
establishment permit issued by the South Carolina Department of Health and
Environmental Control (“DHEC”).
8. The restaurant’s
proposed menu includes a variety of foods: breakfast items such as sandwiches,
pancakes, and omelets; lunch items such as hamburgers, hotdogs, and various
sandwiches; and dinner items such as hamburger steak, pork chops, and fish. There
is seating in the restaurant side of the location for approximately forty (40)
people. In addition, there are approximately ten (10) stools at a small bar
area within the restaurant side of the location.
9. The restaurant’s hours
of operation are from 7:00 a.m. to 8:00 p.m. Monday through Saturday.
10. Mrs. Lawson also
operates a bar inside the location. The bar has approximately six (6) pool
tables and a jukebox. The bar’s hours of operation are from 6:00 p.m. until
1:00 a.m. Friday and Saturday, only. There is seating in the bar side of the
location for approximately forty (40) people. A door separates the restaurant
side of the location from the bar area. During the hours the restaurant is
operational and the bar is closed, the door separating the two areas will
remain closed. During the hours the restaurant and bar are operational,
customers can order food from the restaurant and consume it in the bar area. Mrs.
Lawson does not permit any customer to leave the establishment with any alcohol
sold at the location, and there is a sign posted at the door of the location
indicating that this will not be allowed.
11. There is a jukebox
located on the bar side of the location. In addition, Petitioner provides
karaoke for its patrons on Friday and Saturday nights. In the past, Mrs.
Lawson has had live bands play at the location, approximately one to two times
a year; however, she indicated that a band has not played at the location in
the past year. There is no music played outside of the location, and Mrs.
Lawson stated that she has never received a complaint from the community or law
enforcement about the noise. To ensure that her neighbors are not bothered by
the noise, Mrs. Lawson walks the perimeter of the location to listen for the
level of noise within the location. Further, Mrs. Lawson or her husband, Jackie
Lawson, walk the perimeter of the location to pick-up any trash or debris at
the location nightly to ensure that trash is not thrown onto neighboring
property.
12. Mr. and Mrs. Lawson
own the property where the location is situated. Mrs. Lawson leases the
location from Mr. Lawson.
14. Mrs. Lawson will continue
to be the Manager of the location and will oversee its day-to-day operation. Currently,
she is a school bus driver and works for the school during the early morning
and afternoon hours, Monday through Friday. Mrs. Lawson stated that she works
at the location when finished with her daily school bus routes. Her sister,
Faye DeLoache (“Ms. DeLoache”) works at the location during all hours of its
operation and is over the age of twenty-one (21). She and Mrs. Lawson are the
primary cooks for the restaurant. In Mrs. Lawson’s absence, Ms. DeLoache is
permitted to make various management decisions; however, Mrs. Lawson stated
that Ms. DeLoache is rarely unable to reach her for guidance.
15. Mrs. Lawson’s son,
Eric Lawson, occasionally works as a bouncer at the location. His working
hours are generally from 5:00 p.m. until closing time on Friday and Saturday
nights. Eric Lawson is thirty-six (36) years old, and he does not have a
criminal record, other than speeding tickets. He lives with his parents at
their home, which is located approximately three (3) miles from the location.
16. Jackie Lawson also
occasionally works at the location. He assists his wife in her operating
duties at the location; however, he does not cook for the restaurant. Mr.
Lawson does serve alcohol to the customers after verifying their age.
17. There is adequate
parking at the location: patrons may park in a paved parking lot designated for
the location, and this lot is owned by Mr. and Mrs. Lawson. There are
approximately one hundred (100) parking spots available in this lot; however,
the location generally serves no more than forty (40) to fifty (50) patrons at any
time.
18. There is adequate
lighting at the location: three outside street lights are located at the front
and sides of the location.
19. It is Petitioner’s
policy to prevent any intoxicated person from leaving the restaurant or bar and
driving a motor vehicle. It is also Petitioner’s policy that reasonable
measures be taken to prevent the sale of alcohol to underage persons. Mrs. Lawson
stated that all individuals’ driver’s licenses – or other acceptable forms of
identification – will be checked at the entrance to the bar area and when
ordering within the restaurant or inside the bar area to ensure that no alcohol
is sold by Petitioner’s employees to underage persons.
20. During the South
Carolina Law Enforcement Division’s (“SLED”) inspection of the location on November
17, 2007, Agent Keith Perry (“Agent Perry”) determined that the location is
situated approximately six-tenths (.6) of a mile from the nearest church, the Church
of God of Prophesy. Agent Perry also determined that the location is situated
approximately one and six-tenths (1.6) of a mile from the nearest school, Batesburg-Leesville Middle School. There are no playgrounds near the location.
21. Jim Shaw (“Mr. Shaw”)
testified on behalf of Petitioner at the hearing. He is an employee of DHEC.
His primary duties include conducting restaurant and sewer inspections in Newberry County. Previous to his work assignment in Newberry County, he was assigned to Lexington County where he conducted Petitioner’s restaurant inspection. After he completed
the inspection, he issued a Grade “A” restaurant permit to Petitioner’s
location. Mr. Shaw is also a regular customer of Petitioner. He and his wife
frequent the location approximately three times a month and have done so for
the past year and a half. They play pool there; however, they do not consume
alcoholic beverages while at the location. Mr. Shaw stated that he feels very
safe while he and his wife are inside the location and in the parking lot area
and that he would have no problem with his wife attending without him.
Finally, Mr. Shaw stated that he has not witnessed any loitering in the parking
lot or around the building, and that he has not heard the music from the
location while standing in the parking lot.
22. Martin Jackson, Jr.
(“Mr. Jackson”) filed a protest to the application and testified at the hearing.
Mr. Jackson lives across the street from the location [approximately four
hundred (400) feet], and his primary concern is the noise emitting from the
location. He testified that there is no “buffer” zone between his residence
and the location and that the music being played at the location is loud and
can be heard inside his home. Further, he stated that music from the jukebox
can occasionally be heard inside his home as late as 12:30 a.m. on Saturday or
Sunday mornings. In addition, Mr. Jackson testified that he can hear
Petitioner’s customers screeching tires and revving car engines up when they exit
the parking lot. Mr. Jackson also expressed concerns about trash at and near
the location and his property. He stated that the trash, including beer cans
and bottles, liquor bottles, cigarette packs, and fast food containers, can be
seen daily at the location and along the road. He further stated that he has
never seen Mrs. Lawson or her husband picking up trash outside the location.
Mr. Jackson also expressed safety concerns regarding the location and its
patrons. Specifically, he expressed concern regarding an incident in June
2005. He indicated that a customer of Petitioner’s had come to his house late
at night after engaging in a fight with another individual at the location.
Mr. Jackson acknowledged that a similar incident has not occurred since 2005
but worries that a similar incident could occur again.
23. Mrs. Margie Jackson
filed a protest to the application and testified at the hearing. She lives with
her husband, Martin Jackson, across the street from the location. In addition
to her husband’s concerns, she is most concerned about the level of noise coming
from the location. She stated that as recently as the previous Saturday night,
she heard music from the jukebox at 11:45 p.m. inside in her home.
24. Jason Christopher
Herbert filed a protest to the application and testified at the hearing. He
lives approximately one and a half (1.5) miles from the location. His primary
concern is the increase in drunk-driving incidents in the general area,
especially since South Lee Street/Highway 178 is a major thoroughfare between
Interstate 20 and the town of Batesburg. Mr. Herbert is a Firefighter employed
by the City of Columbia, and he surmised that because the location is situated
in a rural area in Lexington County, service personnel such as police,
firefighters, and emergency medical technicians could not quickly respond to
incidents in the area. He also expressed concern about the noise coming from
the location. Although his house is located over a mile from the location, he testified
that he can hear, when outside his house, music from the location, the screeching
of car tires, and the revving of car engines as customers leave the parking
lot. Finally, he testified that he has generally heard the noises after
midnight on Friday and Saturday nights.
25. Franklin Keisler
filed a protest to the application and testified at the hearing. He sold the
property where the location is situated to Mr. and Mrs. Lawson in 2000. He
lives approximately three-fourths (3/4) of a mile from the location, and his
property adjoins a portion of land the location is situated upon. Mr. Keisler
expressed concern regarding the amount of trash on his property where it adjoins
Petitioner’s property. He stated that wine and beer bottles, beer cans, and
other trash from the location is thrown onto his property. Because he farms
this land with a tractor, Mr. Keisler would like for Mr. and Mrs. Lawson to
pick up the trash daily at and around the in common boundary line.
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 (2005 & Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.
2. S.C.
Code Ann. § 61-2-260 (Supp. 2007) grants the Administrative Law Court the
responsibility to determine contested cases matters governing alcoholic
beverages, including beer, wine and liquor.
3. S.C.
Code Ann. § 61-4-520 (Supp. 2007) sets forth the requirements for the issuance
of a beer and wine permit. Included in the criteria is the requirement that the
proposed location be a suitable one.
4. S.C.
Code Ann. § 61-6-1820 (Supp. 2007) sets forth the requirements for the issuance
of a restaurant liquor by the drink license. Section 61-6-1820(1) provides that an applicant may receive a license upon
the finding that “[t]he applicant is a bona fide nonprofit organization or the
applicant conducts a business bona fide engaged primarily and substantially in
the preparation and serving of meals or furnishing of lodging.”
5. S.C. Code Ann. Reg. 7-401.3 provides that an
establishment holding a restaurant liquor by the drink license must have menus
readily available to its patrons and must prepare, for service to its patrons,
hot meals at least once each business day the establishment is open. Food and snacks prepared off the licensed premises but sold thereon do not
constitute a meal.
6. S.C. Code Ann. § 61-6-120 (Supp. 2007)
provides that a liquor license shall not be issued to a place of business if:
the place of
business is within . . . five hundred feet of any church, school, or playground
situated outside a municipality. Such distance shall be computed by following
the shortest route of ordinary pedestrian or vehicular travel along a public
thoroughfare from the point of the grounds in use as part of such church,
school, or playground . . . .
23 S.C. Code
Ann. Reg. 7-303 (Supp. 2007) clarifies how distances from the location to
schools, churches, and playgrounds are measured.
7. 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. ABC 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 of an applicant for alcohol permits and
licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
8. 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); see also Doe v. Doe, 324 S.C. 492, 502,
478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as
a finder of fact, “has the authority to determine the weight and credibility of
the evidence before him”). 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 Woodall v. Woodall,
322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
9. 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. 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. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the
suitability of a location, it is proper for this Court to consider any evidence
that demonstrates any adverse effect the proposed location will have on the
community. Palmer, supra. 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. Id.
10. Unless
there is 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 48 C.J.S. Intoxicating
Liquors § 166 (2004).
11. Permits
and licenses issued by this state for the sale of liquor, beer and wine are not
property rights. Rather, they are privileges granted in the exercise of the
State’s police power to be used and enjoyed only so long as the holder complies
with the restrictions and conditions governing them. The Administrative Law
Court, as the tribunal authorized to grant the issuance of a permit, is
likewise authorized to revoke or suspend the permit for cause. See Feldman
v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
12. Furthermore,
S.C. Code Ann. Reg. 7-200.1(I) (Supp. 2007) authorizing the imposition of
restrictions on permits, provides:
Any written
stipulation and/or agreement which is voluntarily entered
into by an applicant for a permit or license between the applicant and the
Department, if accepted by the Department, will be incorporated into the basic
requirements for the enjoyment and privilege of obtaining and retaining the
permit or license and shall have the same effect as any and all laws and any
and all other regulations pertaining to the permit or license.
Knowing violation of
the terms of the stipulation or agreement shall constitute sufficient grounds
to revoke said license.
13. The
Department may seek revocation or suspension of permits for the sale of beer
and wine “on its own initiative or on complaint signed and sworn to by two or
more freeholders resident for the preceding six months in the community in
which the licensed premises are located or by a local peace officer, all of
whom are charged with the duty of reporting immediately to the department a
violation of the provisions of section 61‑4‑580 . . . .” S.C. Code
Ann. § 61-4-590 (Supp. 2007). The Department may also seek to suspend or
revoke a liquor by the drink license pursuant to S.C. Code Ann. § 61-6-1830
(Supp. 2007).
14. Based
upon the testimony of the witnesses presented at the hearing, I find that the
location is suitable for the renewal of its on-premises beer and wine permit
and the issuance of a liquor by the drink license contingent upon the stipulations
and restrictions set forth below. It is located in a rural area, and there are
no churches, schools or playgrounds within five hundred (500) feet of the location.
Essentially, there is no evidence in the Record that the location is unsuitable
or that it would have an adverse impact on the community if operated pursuant
to the agreed-upon stipulations of the parties and restrictions placed upon it
by the Court. While the Court is respectful of the
Protestants’ opposition to the requested permit and license and their concerns
of excessive noise and trash, their arguments do not constitute sufficient
basis to deny Petitioner’s application. The Court finds that the stipulations
and restrictions will satisfy the concerns voiced by the Protestants at the
hearing. Therefore, I find that there is sufficient evidence in the
Record to show that the proposed location is suitable, would not have an
adverse impact on the community, and conclude that Petitioner’s renewal application
for an on-premises beer and wine permit and initial application for a liquor by
the drink license should be granted contingent upon the stipulations and
restrictions set forth in detail below.
ORDER
Based upon the above
findings of fact and conclusions of law, it is hereby
ORDERED that the application for a renewal of an on-premises beer and wine permit
and initial liquor by the drink license submitted by Petitioner Kathy Lawson,
d/b/a Kathy’s Bar & Grill for its location at 1120 S. Lee Street,
Batesburg, South Carolina is GRANTED contingent upon Petitioner
signing a written agreement with the South Carolina Department of Revenue agreeing to the stipulations
set forth below:
STIPULATIONS
1. Live entertainment is prohibited at the
location.
2. Petitioner’s patrons are prohibited from
leaving the establishment with any alcohol in their possession.
3. Mrs. Lawson, her husband, or an employee of
Petitioner’s will pick up all the trash daily from the location’s premises,
including the area adjoining Protestant Franklin Keisler’s property.
4. Loud noise is prohibited at the location. Music
from the jukebox or karaoke system shall not be heard beyond one hundred (100)
feet from the footprint of the building housing the bar and restaurant. Mrs.
Lawson must post a sign at the location prohibiting Petitioner’s patrons from
screeching car tires or revving up car engines while on the location’s
premises.
IT
IS FURTHER ORDERED that the Court imposes the following restrictions:
RESTRICTIONS
1. All individuals under the age of twenty-one (21) must wear
an easily identifiable wrist band, while inside the bar area of the location, to
indicate to Petitioner’s employees and other patrons that s/he is under the age
of 21. Any individual under the age of 21 who refuses to wear the
above-referenced wrist band shall be prohibited from entering the bar area.
2. Petitioner is prohibited from selling alcohol in the bar
side of the location other than from 6:00 p.m. on Friday evening until 12:30
a.m. on Saturday morning and on Saturday evening from 6:00 p.m. until 12:00 a.m.
Sunday morning.
IT
IS FURTHER ORDERED that a violation of any of the above stipulations or
restrictions will be considered a violation against the permit and license and
may result in a fine, suspension, or revocation of the permit and license.
AND IT IS SO ORDERED.
__________________________________
March 2, 2009 Marvin F. Kittrell
Columbia, South Carolina Chief
Judge
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