South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Kathy Lawson, d/b/a Kathy’s Produce/Pool Hall vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Kathy Lawson, d/b/a Kathy’s Produce/Pool Hall
1120B South Lee St., Batesburg, SC

Respondent:
South Carolina Department of Revenue

Intervenors:
Bobby C. Turner, Tammie Covington and Martin Jackson
 
DOCKET NUMBER:
04-ALJ-17-0414-CC

APPEARANCES:
For the Petitioner: Jonathan R. Hendrix, Esquire

For the Department of Revenue: Lynn M. Baker, Esquire

For the Respondents/Intervenors: Ronald A. Hightower, Esquire

For the Protestants: Pro Se
 

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 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. Kathy Lawson, d/b/a Kathy’s Produce/Pool Hall (Petitioner), seeks a sale and consumption (minibottle) license for its location at 1120B South Lee Street, Batesburg, South Carolina (location). Several protests to the application were filed with the South Carolina Department of Revenue (Department). Because of the protests, the hearing was required. The Department filed a Motion to be Excused setting forth that but for the protests it received, this permit would have been issued. By previous Order, that motion was denied.


A hearing in this matter was held before me on January 25, 2005 and continuing on January 26, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and many Protestants appeared at the hearing. Three of the Protestants, Bobby C. Turner, Tammie Covington and Martin Jackson filed a Motion to Intervene with the Court at the beginning of the hearing on January 25, 2005. There being no objection by either of the parties, the motion was granted. Evidence was then introduced and testimony was given. After carefully weighing all the evidence, this Court finds that the request for the sale and consumption license must be denied.

FINDINGS OF FACT

Having observed the witnesses and reviewed their testimony and the exhibits presented and placed into the record at the hearing, having passed upon their credibility, and having taken into consideration the burden of proof upon the parties and the Protestants, I make the following Findings of Fact by a preponderance of the 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 Protestants.

3.Petitioner Kathy Lawson seeks a sale and consumption license for her location at 1120B South Lee Street, Batesburg, South Carolina.

4.Petitioner is over the age of twenty-one (21). She has been a legal resident of the State of South Carolina all of her life, and she has maintained her principal place of abode in the State of South Carolina for the same length of time.

5.Petitioner possesses good moral character and has never been convicted of a crime.

6.Petitioner currently holds a beer and wine permit for on and off-premise consumption at the location. She has never had a permit or license suspended or revoked.

7.Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

8.Petitioner currently operates a produce stand and pool hall at the location. She sells beer and wine for on-premise consumption in the pool hall and for off-premise consumption in the produce stand. Petitioner also sells light groceries and produce at the produce stand. The location is not equipped with a kitchen. However, Petitioner intends to construct a kitchen in the portion of the building where the produce stand is currently located and serve food items such as hamburgers, steaks, french fries, etc. In the pool hall, there are six pool tables and a bar. Double doors inside the location connect the produce stand and pool hall. There are also multiple entrances from the outside so that one does not have to go through the produce stand to get to the pool hall.

9.The location is open Monday through Saturday, beginning at 9:00 a.m. each morning. It closes at 11:00 p.m. Monday through Thursday, around 2:00 a.m. to 3:00 a.m. on Friday night, and at midnight on Saturday night. Beer is sold at both the produce stand and at the bar in the pool hall all day. There is a jukebox at the location and live bands also perform on many Friday nights. Petitioner estimates that approximately 100 people patronize the location on nights that live bands perform.

10.Petitioner employs a bouncer at the door on Friday and Saturday nights who checks the identification of all individuals who enter the location. Individuals under twenty-one (21) years of age or those who do not show identification have their hands stamped. Those who are twenty-one (21) or over are given a wrist band, and drinks are to be sold only to those who have a wrist band.

11.Petitioner testified that the bouncer, her son Eric Larson, and her husband Jackie Lawson patrol the outside of the location every thirty (30) minutes. However, notwithstanding Petitioner’s testimony that the parking area is patrolled frequently, various incidents of drinking and fighting in the parking lot were testified to by other witnesses at the hearing,

12.In addition to operating the location, Petitioner is also a school bus driver. Her first route begins at approximately 6:00 a.m. and ends at approximately 8:30 a.m., Monday through Friday. Afterwards, she returns the school bus to her residence, which is approximately three (3) miles from the location. Petitioner then she goes to open the location at 9:00 a.m. At approximately 1:30 p.m. she begins her afternoon school bus route, finishing her duties and returning to her home about 4:30 p.m. Petitioner then returns to work at the location. While Petitioner is operating her school bus route, Eric Lawson and her sister Margaret Faye DeLoache assist in the day-to-day operations of the produce stand/pool hall.

13.Petitioner purchased the 6.93 acres on which the location sits from Franklin Delano Keisler on March 16, 2000. Shortly after purchasing the real property, Petitioner and her husband constructed a warehouse, a metal building with a cement floor, on the property with the intention of opening a business engaged in the construction and sale of chicken house equipment which her son was to operate. However, due to an illness, her son was unable to do so and Petitioner opened the produce stand/pool hall. In addition to the warehouse, there is also a mobile home on the property which is owned by Petitioner’s other son, Ricky Lawson. Mr. Lawson resides in the mobile home with his family.

14.The property fronts on S.C. Highway 245 and is bounded by other property owned by Mr. Keisler. Adjacent to the property and located on the same side of S.C. Highway 245 is the home of Intervenor Tammie Covington. Directly across S.C. Highway 245 from the Petitioner’s property is the home of Intervenor Martin Jackson. See Intervenor Exhibit # 1. There are also several churches and schools in the area. However, none are within five hundred (500) feet of the location.

15.Intervenors Bobby Turner, Tammie Covington, and Martin Jackson all testified at the hearing in opposition to the license. They believe the location is too close to the nearby residences and will promote adverse changes to this community. Their main points of concern are:

a.Noise.Ms. Covington, whose property adjoins the location, is especially concerned about the noise coming from the location and the parking lot because her bedroom faces the pool hall. She testified that she can hear music from the live bands and jukebox and that this disturbs her sleep. There is no buffer between Ms. Covington’s property and the location. Mr. Turner, who lives 3/10 of a mile from the location, also testified that he can hear the live bands inside his house, as did Mr. Jackson, who lives across the street from the location.

b.Trash.Ms. Covington testified that there has been an increase in litter along Highway 245 since the opening of the location, mostly consisting of discarded beer cans.

c.Traffic. Ms. Covington also expressed concern that traffic has increased since the opening of the location and that she often hears cars squealing tires as they leave the parking lot.

d.Safety. Mr. Jackson expressed concerns for his safety. He is concerned that there will be an increase in fighting and reckless or drunk driving. Mr. Jackson testified that an incident occurred at his home about a year ago when a bleeding, intoxicated male person involved in an altercation at the location came to his home for help. Mr. Turner also testified that on one occasion he observed an intoxicated individual walking down the road to the location.

e.Underage drinking. Ms. Covington also expressed concern about the fact that minors are allowed into the location. Although Petitioner testified that she has procedures in place to prevent underage drinking, one witness testified at the hearing that underage drinking did take place both inside the location and outside in the parking lot.

16.Lieutenant Daniel Brian Kerns of the Lexington County Sheriff's Department, the district commander in charge of this jurisdiction, appeared as a witness on behalf of the Intervenors. Lt. Kerns expressed concern that the issuance of the license may result in increased criminal activity in the area and also increase the number of calls for service to which the Sheriff’s Department has to respond at the location. Lt. Kerns further testified that the location is in a remote area of the county and that calls for service at the location utilize a significant amount of an officer’s time and service. Since opening, there have been several assaults reported to police at the location.

17.Petitioner originally requested the minibottle license for that part of her business which operates as the pool hall, at the 1120B South Lee Street address. However, at the hearing, Petitioner requested that her application be amended to include the entire location.

18.From the evidence above, it appears that the issuance of a minibottle license at the location will result in an overall adverse impact on the community and an increase in criminal activity. Accordingly, Petitioner’s proposed location is not suitable for a minibottle license.

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. 2003) 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. 2003) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2.S.C. Code Ann. § 61-6-1820 (Supp. 2003) sets forth the requirements for the issuance of a sale and consumption (“minibottle”) license.

3.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).

4.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).

5.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 a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operation of a 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). Additionally, it is 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).

6.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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

7.“A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). Nevertheless, 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).

8.Permits and licenses issued by the State of South Carolina for the sale of liquor, beer, and wine are not property rights, but are privileges granted in the exercise of the police power of this state to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. 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).

9. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2003) are met. That section requires that a mini-bottle license be granted only to a bona fide business engaged in either the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not only must the principals and applicant be of good moral character but the business must also have a reputation for peace and good order.

S.C. Code Ann. § 61-6-20(2) (Supp. 2003) sets forth:

‘Bona fide engaged primarily and substantially in the preparation and serving of meals’ means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

In order to meet the requirements of Section 61-6-20(2), the location must also meet the requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003). Additionally, Section 61-6-1820 also provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, or playgrounds as set forth in S.C. Code Ann. § 61-6-120 (Supp. 2003).

10.I find that the location is not suitable for the issuance of a sale and consumption license. Although the location is in a rural area, there are numerous residences and several churches and schools in close proximity to the location. These residents have experienced numerous disturbances since the opening of the location, including disturbances in sleep from noise and traffic. There have been several assaults and other alcohol related problems at the location since its opening. There was testimony at the hearing that underage drinking occurs at the location as well. Because the location is in a rural area, it places a strain on law enforcement to have to respond to calls for service at the location. Furthermore, there is currently no kitchen at the location. Given the proximity of nearby residences, the concern for safety of residents in the neighborhood, the nature of the criminal activities that have occurred at the location, and because of the burden it creates on law enforcement, I find that the issuance of a minibottle license would have an adverse impact on the community and therefore find that the location is not suitable.

ORDER

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

ORDERED that Petitioner's application for a minibottle license is denied.

AND IT IS SO ORDERED.

_________________________________

Marvin F. Kittrell

Chief Administrative Law Judge

February 22, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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