ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code
Ann. §61-4-520 (Supp.2003) for a contested case hearing. The Petitioner seeks an on-premises
beer and wine permit and sale and consumption (mini-bottle) license for the location at 3789
Hwy. 521 North, Sumter, South Carolina. This matter is presently before the Court because of a
protest by the Sumter County Sheriff’s Office. The Respondent moved to be excused, since but
for the protest they would have issued the permit and license. This motion was denied. After
notice to the parties and Protestant, a hearing was conducted on February 11, 2005, at the Court
in Columbia, South Carolina. At the hearing, the parties, their counsel and Protestant were
present as indicated.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit and mini-bottle
license
for the location known as Shorty’s Sports Bar, located at 3789 Hwy. 521 North, Sumter, South
Carolina. This location is a sports bar located approximately one mile from Shaw Air Force
Base.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements and would have granted the permit but
for the protest.
3. The applicant is of good moral character. The State Law Enforcement Division’s
criminal background investigation revealed no criminal violations. The parties stipulated that
the applicant met the personal qualifications to hold a license and permit.
6. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained her principal residence in the State for at least thirty
days prior to the application.
7.Notice of the application appeared in the Sumter Item, a newspaper of general
circulation in the area of the proposed location, once a week for three consecutive weeks and
notice was posted at the proposed location for fifteen days.
8.The proposed location has seating for 150—200 people, approximately 30 paved
parking spaces, and an additional one and one-third acres of grassland for parking. The
restaurant would be open Tuesday through Saturday 5 PM to midnight. There will be no live
music. The menu will consist of cheeseburgers, chicken wings, chips and appetizers.
9.The protestant indicated that some of the neighbors interviewed by the Sheriff’s
Department were concerned about the presence of drunk drivers in the area leaving the proposed
location. The court noted that none of the neighbors interviewed by the sheriff’s department
filed a valid protest with the Department of Revenue.
10.The location is not yet completed and will need to be inspected by the Department
of Health and Environmental Control for a food service license as well as a final building
inspection prior to issuance of any license.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.The South Carolina Administrative Law Court has jurisdiction over this matter
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003).
2.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact to determine the fitness or suitability of the proposed business location of an
applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C.
593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).
4.It is also the fact finder’s responsibility to judge the demeanor and credibility of
the witnesses and determine the relevance and weight of any testimony offered. 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.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 alone to deny the application. 48
C.J.S. Intoxicating Liquors § 119 (1981).
6.S.C. Code Ann. § 61-4-525 (Supp. 2003) provides that a person residing in the
county in which a beer and wine permit is requested to be granted, or a person residing within
five (5) miles of the location, may protest the issuance of the permit if he files a written protest.
7.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South
Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
8.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).
9.After considering all the relevant factors, I find that the restaurant’s location is
suitable for the on-premises sale of beer and wine and sale and consumption (minibottle) license,
upon satisfactory completion of construction and final inspections, including DHEC. Although
this court appreciates the diligence of the Sumter County Sheriff’s department in interviewing
the neighbors of the proposed location, the fact remains that none of these neighbors protested
the application. In addition, their concerns, which are hearsay, are all speculative.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner’s
application for an on-premises beer and wine permit and sale and consumption (minibottle)
license upon satisfactory completion of the location and all necessary inspections.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 3, 2005
Columbia, South Carolina |