ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (ALC or Court) pursuant to
S.C. Code Ann. §§ 61-2-90 & 61-2-260 (Supp. 2008) and S.C. Code Ann. §§
1-23-310 et seq. (Supp. 2007) for a contested case hearing. Petitioner
is seeking an on-premises beer and wine permit for Big Guys BBQ. After proper
notice, a hearing was held on April 2, 2009 at the offices of the ALC 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, I
make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner Mark
Bedenbaugh seeks an on-premise beer and wine permit for Big Guys BBQ, located
at 12393 Hwy. 25 Business, Ware Shoals, South Carolina. Notice of Petitioner’s
application was lawfully posted at the location and published in a newspaper of
general circulation.
2. Mark
Bedenbaugh is the owner of Big Guys BBQ. Mr. Bedenbaugh owns approximately
three (3) acres upon which Big Guys BBQ is located. The location is currently
operating as a bar and serving snacks. Mr. Bedenbaugh is in the process of
adding approximately 900 square feet on to the building to be used as a kitchen
for both Big Guys BBQ and his catering business. There is a fenced area
outside of the building for patrons to use as a horseshoe pit and to congregate
in.
3. There are
approximately 70 parking spaces available on the property. The parking lot is
well lit with a large light on either end. Furthermore, there are security
cameras on the premises and a fence surrounding the property. Mr. Bedenbaugh
intends to hire security personnel to work at the door on Friday and Saturday
nights. He has also informed his bartenders to check I.D.’s and utilizes
wristbands to identify those patrons who are over the age of 21. Petitioner
currently operates between the hours of 2 p.m. and 11 p.m. Monday through
Thursday, from 2 p.m. to 3 a.m. Friday and from 2 p.m. to 12 a.m. Saturday.
4. George Estes
protested the re-issuance of the beer and wine permit. Mr. Estes lives approximately 500 feet from the location. He testified that
noise emanating from the location is a nuisance to him and his family every
weekend. Motorcycles often make loud noise at all times of the night as they
leave the location. On two occasions live bands played outside and dedicated
songs to him and other neighbors.
Charles Ostergren is
also concerned with the re-issuance of the beer and wine permit. His home is
200 feet from the location. He has had to re-locate his bedroom to a different
side of his house due to a floodlight in the parking lot shining into his
bedroom window. He testified that there is constantly noise coming from the
location. He has called the police on multiple occasions.
It
is clear that the concerns of the Protestant are valid. However, the proposed
location was previously permitted to sell beer and wine under different
ownership. Therefore, the Protestant must show that the location is less
suitable for the sale of beer and wine than during the prior period of
licensure. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d
801 (1973). This location most certainly has the potential to be a nuisance to
the community. However, if operated within the guidelines and restrictions set
forth below, I find that the proposed location is suitable for an on-premise
beer and wine permit. However, if even one of the restrictions is violated,
the location will no longer be suitable.
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. 2008) grants jurisdiction to the Administrative Law
Court to hear contested cases under the Administrative Procedures Act. Furthermore,
S.C. Code Ann. § 61-2-260 (Supp. 2008) grants the Court the responsibilities to
determine contested matters governing alcoholic beverages, beer and wine.
2. Generally,
no license or permit may be issued unless the applicant is the owner of the
business seeking the permit or license and “the person and all principals are
of good moral character.” S.C. Code Ann § 61-2-100 (Supp. 2007). S.C. Code
Ann. § 61-4-520 (Supp. 2008) also sets forth the requirements for the issuance
of a beer and wine permit. Section 61-4-520(5) provides that the location of
the proposed place of business must be a proper one. Furthermore, Section
61-4-520(6) provides that in making that determination, the Department, and
thus the ALC, “may consider, among other factors, as indications of unsuitable
location, the proximity to residences, schools, playgrounds, and churches.”
3. Neither a
license for the sale and consumption of alcoholic beverages nor a beer and wine
permit is a contract or 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. 2008)
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, 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 118 (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 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). In addition, the
strain upon law enforcements ability to adequately protect the community is a factor
in evaluating a permit. Moore v. South Carolina Alcoholic Beverage
Control Com'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
4. The
Administrative Law Court, as the tribunal authorized to grant the issuance of a
permit, may place restrictions or conditions on these permits or licenses. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2008) 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.
5. Based
upon the evidence presented, Petitioner meets the statutory requirements for
holding an on-premise beer and wine permit at the proposed location with the
following restrictions.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit be granted upon
Petitioner entering into a written agreement with the Department incorporating
the restrictions set forth below:
1. Petitioner shall not serve beer
or wine after 10 p.m. Monday through Thursday nights or after 12 a.m. Friday
and Saturday nights.
2. There shall be no live music or
D.J. on the outside of the premises. Any noise that is noticeably audible
within any local residence with closed doors and windows after 10:00 p.m. shall
be considered excessive. Furthermore, 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.
IT
IS FURTHER ORDERED that a violation of the above restrictions will be
considered a violation against the permit/license and may result in a fine,
suspension or revocation.
IT
IS FURTHER ORDERED that the Department resume processing Petitioner’s
application and issue an on-premise beer and wine permit to the Petitioner upon
a satisfactory final inspection and payment of the proper fees and costs.
AND
IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
April 8, 2009
Columbia, South Carolina
|