SC Administrative Law Court Decisions

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 2408 Hwy. 72/221 East, Greenwood, South Carolina. This matter is presently before the Court because of a protest by the Greenwood 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 by order dated December 9, 2004. 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 Steel Horse Nite Life, located at 2408 Hwy. 72/221 East, Greenwood, South Carolina. This proposed location will be a full service restaurant and night club with some live and recorded music. The principal of the applicant, Gregory M. Jones, testified that he plans to book some notable live acts in the location. In addition, he plans to have a van to shuttle intoxicated patrons to their homes. I found Mr. Jones to be a very credible witness and sincere in his desire to provide additional jobs for the Greenwood area.

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. At the hearing, however, Mr. Jones testified that Robert Odom was a minority owner of the applicant and would have some involvement in the day to day operation of the restaurant. The Department requested that it be allowed to perform a State Law Enforcement Division criminal background investigation on Mr. Odom.

3.The principal, Mr. Jones, is of good moral character. The State Law Enforcement

Division’s criminal background investigation revealed no criminal violations. He has not previously held an alcohol license or permit.

4. 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 his principal residence in the State for at least thirty days prior to the application.

5. Notice of the application appeared in the Index Journal, 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.

6.The proposed location has about 50 tables, with an overall capacity for 400 people, and parking for approximately 70 cars in a gravel lot. The restaurant would be open from 12 noon to midnight Monday through Thursday, and noon until 2:00 AM on Friday and Saturday. There will be a full menu, and the location has been given an “A” rating by the Department of Health and Environmental Control for food service. The applicant will hire approximately five “bouncers” to aid in security. The location has been previously licensed in the past under different owners. The area is generally commercial and industrial, and highway 72/221 is a major four lane thoroughfare.

7.The Protestants indicated that there had been problems with this location in the past.

The complaints and incidents occurring at this location have ranged from noise to murder. The Protestants are concerned about the depletion of manpower in the force if they have to answer a major call at the location and have another incident elsewhere in the county. In addition, they state that the lighting and security at the location have been inadequate in the past.

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 this State for the sale of liquor, beer and wine are not property rights. They are, rather, 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, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

Furthermore, 23 S.C. Code Ann. Regs. 7-200.1(I) (eff. 6/27/03) authorizing the imposition of restrictions on permits, provides:

Stipulations. 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.

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 the criminal background check on Mr. Robert Odom and the stipulations that Mr. Gregory Jones agreed to at the hearing, namely that he will install additional lighting in the rear of the building and provide a security guard in the parking lot.

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 criminal background check on Mr. Robert Odom and the signed stipulations that additional lighting in the rear of the building will be installed and maintained and a security guard will be provided in the parking lot.

AND IT IS SO ORDERED.

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

April 3, 2005

Columbia, South Carolina