ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq.
(2005) for a contested case hearing. Petitioner Rose Hill Estate, LLC, seeks a restaurant
minibottle license for the restaurant facility at its bed and breakfast, Rose Hill, located at 221
Greenville Street NW in Aiken, South Carolina. Respondent South Carolina Department of
Revenue (Department) would have granted the license but for the protest filed by a nearby
resident regarding the suitability of Petitioner’s restaurant for the requested license.
Accordingly, the Department was excused from appearing at the hearing of this matter.
After timely notice to the parties and the protestant, a hearing in this case was held on
March 1, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina.
Based upon the evidence presented regarding the suitability of the proposed location and the
applicable law, I find that Petitioner’s application for a restaurant minibottle license should be
granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this case, and taking into account the credibility and accuracy of the evidence, I make
the following Findings of Fact by a preponderance of the evidence:
1.On or about June 1, 2004, Stephen Mueller and his mother, Eva Mueller,
submitted an application on behalf of Rose Hill Estate, LLC, to the Department for a restaurant
minibottle license for their bed and breakfast located at 221 Greenville Street NW in Aiken,
South Carolina. This application and the Department’s file on the application are hereby
incorporated into the record by reference.
2.Rose Hill Estate, LLC, which Mr. Mueller co-owns with his mother, Eva Mueller,
is a South Carolina limited liability company, organized on March 6, 2003. Rose Hill Estate,
LLC, is currently in good standing with the South Carolina Secretary of State and has a
reputation for peace and good order in its community.
3.Mr. Mueller and Ms. Mueller are over twenty-one years of age and do not have
any delinquent state or federal taxes. Further, the South Carolina Law Enforcement Division
(SLED) conducted a criminal background investigation of Mr. Mueller and Ms. Mueller that did
not reveal any criminal arrests or convictions, and the record does not indicate that Mr. Mueller
and Ms. Mueller have engaged in acts or conduct implying the absence of good moral character.
4.Notice of Petitioner’s application was published in the Aiken Standard, a
newspaper published and circulated in Aiken, South Carolina, once a week for three consecutive
weeks, and proper notice of the application was posted at the proposed location for fifteen days.
5.The restaurant facilities at Rose Hill have received a Grade A restaurant license
from the South Carolina Department of Health and Environmental Control. Further, Rose Hill
has the capacity to seat at least forty persons simultaneously at tables for the service of meals
and has a full-service restaurant kitchen. The restaurant at Rose Hill is currently operating and
has done so, with an on-premises beer and wine permit, for approximately one year without
incident.
6.Rose Hill Estate is a ten-room bed and breakfast and restaurant housed in a
historic home, Rose Hill, which is situated on approximately five acres, covering an entire city
block, in the historic district of downtown Aiken. The property is surrounded by a stone wall
and the grounds are covered with gardens, mature trees, and lush vegetation. The house itself,
which is on the National Register of Historic Places, was constructed as a winter colony in 1900
and, after falling into disrepair, has been renovated by the Muellers and converted into their
current business.
7.While situated in downtown Aiken, Rose Hill is not readily visible from nearby
streets because of the gardens and vegetation surrounding the home. Further, there are no
churches, schools, or playgrounds within three hundred feet of the location, and the nearest
residence is over two hundred feet away from the location.
8.The protestant, Christine Butler, lives near Rose Hill and opposes the issuance of
the license in question on the ground that the location is unsuitable for a restaurant offering
liquor drinks, given the proximity of the restaurant to residences, schools, and a nursing home in
the area. In particular, Ms. Butler is concerned that diners leaving the restaurant will drive while
intoxicated, thereby endangering the safety and welfare of nearby residents and their children, as
well as other citizens on the roadway. Ms. Butler also raised a concern that Rose Hill’s
restaurant operations do comply with local zoning ordinances.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the South Carolina Administrative Law
Court pursuant to S.C. Code Ann. § 61-6-1825 (Supp. 2004), S.C. Code Ann. § 61-2-260 (Supp.
2004), and S.C. Code Ann. § 1-23-600(B) (Supp. 2004).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in
the sound discretion of the body or official to whom the duty of issuing it is committed[.]”
Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477
(Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235
S.E.2d 806 (1977).
3.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). 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, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471
S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct.
App. 1990).
4.S.C. Code Ann. § 61-6-1820 (Supp. 2004) sets forth the basic criteria for the
issuance of a minibottle license. Although the suitability of the proposed location is not listed in
Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v.
S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
5.Although “suitability” of location is not statutorily defined, broad discretion is
vested in the trier of fact to determine the fitness or suitability of a particular location for the
requested license. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
6.The determination of suitability of location is not necessarily a function solely of
geography. Rather, it involves an infinite variety of considerations related to the nature and
operation of the proposed business and its impact on the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic
Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
7.However, without sufficient evidence of an adverse impact on the community, a
permit application must not be denied if the statutory criteria are satisfied. The fact that the
issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the
application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).
8.Further, the denial of a license or permit to an applicant on the ground of
unsuitability of location is without evidentiary support when relevant testimony of those
opposing the requested license or permit consists entirely of opinions, generalities, and
conclusions not supported by the facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973);
Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); see also, e.g., Southland Corp. v. City of
Westminster City Council, 746 P.2d 1353, 1356 (Colo. Ct. App. 1987) (holding that the
testimony of local school officials who objected to the issuance of a beer license did not provide
a basis for denying the license because their testimony “was wholly speculative in nature, and
was based exclusively on what ‘might’ occur if the license were granted”).
9.In the case at hand, I find that the proposed location is suitable for Petitioner to
operate a restaurant with a minibottle license. Rose Hill’s restaurant operations are in keeping
with the character of the historic district of downtown Aiken, and, for the past year, the
restaurant has harmoniously coexisted with the neighboring community while operating with an
on-premises beer and wine permit. There is no evidence to suggest that, by offering liquor
drinks in addition to beer and wine, the character of Rose Hill’s operations will be substantially
changed, such that its restaurant business would no longer be suitable for the location.
10.In reaching a decision in this matter, this tribunal is constrained by the record
before it and by the applicable law. Here, Petitioner meets all of the statutory and regulatory
criteria enacted by the South Carolina General Assembly for the issuance of a restaurant
minibottle license, and there has been no evidentiary showing that the proposed location is
unsuitable for Petitioner’s restaurant or that the issuance of the requested license would have an
adverse impact on the surrounding community. In fact, the protestant was complimentary of the
Muellers’ restoration of Rose Hill and the character of their bed and breakfast and restaurant
business at Rose Hill. The protestant’s primary objection was not directly related to Rose Hill’s
operations, but rather stemmed from her concern about the possibility of drivers under the
influence of alcohol leaving the establishment and entering the roads in neighboring residential
areas. However, while concerns about drunk drivers are not irrelevant to liquor licensing
matters, the protestant’s concerns in this case are purely speculative and without evidentiary
support. Moreover, the protestant’s concerns with drunk driving in this matter are particularly
unpersuasive in light of Rose Hill’s operation with an on-premises beer and wine permit for the
past year without incident. Further, the protestant’s contention that Rose Hill’s restaurant
operations violate Aiken’s zoning ordinances is a concern properly before the City of Aiken’s
zoning authorities. Therefore, while this tribunal is respectful of the protestant’s opposition to
the requested license, the arguments proffered by the protestant do not constitute a sufficient
basis upon which to deny Petitioner’s application.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall GRANT Petitioner’s application
for a restaurant minibottle license for the premises located at 221 Greenville Street NW in
Aiken, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211
March 10, 2005
Columbia, South Carolina |
