South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Big Guys BBQ, LLC, d/b/a Big Un’s Pit Stop vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Big Guys BBQ, LLC, d/b/a Big Un’s Pit Stop

Respondents:
South Carolina Department of Revenue and George Estes
 
DOCKET NUMBER:
09-ALJ-17-0028-CC

APPEARANCES:
For the Petitioner: Pro Se

For the Department: Caroline H. Raines, Esquire

For the Respondent: C. Lance Sheek, Esquire
 

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. [2] 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



[1] Mr. Estes made a Motion to Intervene at the beginning of the hearing. Neither party objected to the motion, therefore it was granted.

[2] Respondent Department of Revenue (Department) appeared at the hearing stating that but for the protest it received this application would have been granted. Therefore, the Department offered no evidence in opposition to the Petitioner receiving the permit.


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