SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned case comes before this Court 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 Gloria Montgomery seeks an on-premises beer and wine permit for her restaurant and food store, Montgomery’s Grill, located at 3201 Austin Avenue in Charleston, South Carolina. Respondent South Carolina Department of Revenue (Department) initially found that Petitioner met all of the statutory requirements for an on-premises beer and wine permit and would have granted the permit but for the protests filed by the City of Charleston, South Carolina, on behalf of certain concerned residents, regarding the suitability of the proposed location. However, the Department subsequently learned that Petitioner had applied for at least one renewal of the beer and wine permit for Montgomery’s Grill in the name of her deceased father, the prior owner of Montgomery’s Grill. Based upon Petitioner’s improper use of her late father’s signature, the Department filed an Amended Agency Transmittal on March 22, 2005, in which it took a position in opposition to Petitioner’s permit application.

After timely notice to the parties and the protestant, a hearing of this case was held on March 24, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented at the hearing and upon the applicable law, I find that Petitioner’s application for an on-premises beer and wine permit should be granted.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

Application

1.On September 29, 2004, Petitioner Gloria Montgomery submitted an application to the Department for an on-premises beer and wine permit for Montgomery’s Grill, a restaurant and food store located at 3201 Austin Avenue in Charleston, South Carolina. This application and the Department’s file on the application are hereby incorporated into the record by reference.

2.Notice of Petitioner’s application was published in The Post and Courier, a newspaper published and circulated in Charleston, South Carolina, once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

Suitability of Location/Business

3.Montgomery’s Grill is a type of restaurant and food store known in the community as a “sweet shop.” It sells prepared foods such as chicken wings and hamburgers, as well as pre-packaged foods like soft drinks, candy, and chips. It also sells beer and wine for both on- and off-premises consumption.

4.Montgomery’s Grill has operated as a sweet shop, with a beer and wine permit, at the proposed location for over forty years. Throughout these forty years, Montgomery’s Grill has been a family owned and operated business, run by Petitioner’s grandmother during the 1960s and 1970s, Petitioner’s father during the 1980s, and Petitioner since the late 1980s/early 1990s. The nature of the business at Montgomery’s Grill, including the nature of its current operations, has remained basically unchanged since the early 1960s.

5.Montgomery’s Grill is located in a primarily residential area in the northern portion of the City of Charleston known as the Rosemont neighborhood. As noted above, it has been a fixture of that community for some forty years. And, despite its location in a largely residential area, some members of Rosemont community, including some members of the Rosemont Neighborhood Association, find Montgomery’s Grill to be an asset to the community and support Petitioner’s application for a beer and wine permit. There are approximately seven residences within several hundred feet of Montgomery’s Grill. However, there are no churches, schools, or playgrounds within close proximity of the location.

Suitability of Applicant

6.Petitioner is over twenty-one years of age, has no delinquent state or federal taxes, and is a legal resident of the United States and of the State of South Carolina. Further, Petitioner resides and maintains her principal place of abode in South Carolina, and did so for at least thirty days prior to making her application for a beer and wine permit.

7.While Petitioner was convicted in 1984 of possessing gambling paraphernalia, for which she received a $200 fine, Petitioner has no other criminal record and there is no evidence in the record suggesting that Petitioner has engaged in acts or conduct implying the absence of good moral character. Further, Petitioner has not had a beer and wine permit that she held suspended or revoked, and the record does not reveal that Petitioner has committed any violations of South Carolina’s alcoholic beverage laws.

8.Petitioner did, however, improperly renew the beer and wine permit for Montgomery’s Grill in her father’s name three times since his death in 1998. Upon learning from the Charleston Police Department in late 2004 that the business’s beer and wine permit needed to be in her name rather than that of her deceased father, Petitioner submitted the instant application to the Department for a beer and wine permit in her name. At the hearing, Petitioner explained that, when she renewed the business’s permit in her father’s name, she was unaware of the rules governing the transfer of alcoholic beverage permits upon the death of the permittee. Nevertheless, in her testimony, Petitioner acknowledged that it was improper for her to have submitted such renewal applications and apologized for doing so.

Opposition to the Petitioner’s Application

9.The Department would deny Petitioner’s permit application based upon Petitioner’s suitability to hold a permit to sell beer and wine. In particular, the Department contends that by submitting three renewal permit applications for Montgomery’s Grill under her deceased father’s name Petitioner demonstrated that she is unfit to hold a retail beer and wine permit.

10.Two employees of the City of Charleston appeared on behalf of the City in opposition to Petitioner’s application. Jane Baker, the Neighborhood Services Coordinator for the City, testified that during a recent revitalization effort in the Rosemont community, known as Operation Neighborhood, the president of the Rosemont Neighborhood Association identified Montgomery’s Grill as a nuisance business that contributed to littering, public drinking, and illegal drug activity in the vicinity of the location. Because these concerns about the business were mainly held by elderly residents of the Rosemont community, who were afraid of retaliation for opposing Petitioner’s permit application, the City agreed to file a protest against Petitioner’s application on their behalf. Beyond representing these community concerns, the City did not, itself, have any particular information or evidence related to the operations of Montgomery’s Grill or the effects of those operations on the surrounding community. However, the City did raise a zoning concern regarding the proposed location. Lee Batchelder, the Zoning Administrator with the City, testified that, while Montgomery’s Grill had obtained a variance allowing it to operate a food store on property otherwise zoned for residential use, that variance did not allow the business to sell alcoholic beverages for on- or off-premises consumption.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

Jurisdiction and Background

1.Jurisdiction over this case is vested with the South Carolina Administrative Law Court 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).

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.S.C. Code Ann. §§ 61-4-500 through 61-4-620 (Supp. 2004) govern applications for retail beer and wine permits and establish the criteria for determining eligibility for those permits. Further, S.C. Code Ann. § 61-2-100 (Supp. 2004) lays out the general requirements that all applicants for permits and licenses to sell alcoholic beverages must satisfy.

Suitability of Location

4.S.C. Code Ann. § 61-4-520 (Supp. 2004) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7).

5.Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness and suitability of a particular location for the requested permit. 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.In the case at hand, there has not been a sufficient evidentiary showing that the location of Montgomery’s Grill is unsuitable for a “sweet shop” selling beer and wine for on-premises consumption or that the issuance of the requested permit would create problems in or have an adverse impact upon the surrounding community. Montgomery’s Grill has operated at the location in question with a retail beer and wine permit for over forty years, including, most recently, operations for four months under a temporary beer and wine permit issued to Petitioner, and there is no evidence in the record to suggest that, during those forty years, Montgomery’s Grill has operated in a manner detrimental to the surrounding community. And, while some local residents expressed concerns regarding the operations of Montgomery’s Grill to the City, these general concerns were not made directly to this Court, are not supported by records from law enforcement agencies or other public safety entities, and are contradicted by other local residents who support Petitioner’s application. As such, those concerns do not have sufficient weight for this Court to deny Petitioner’s permit application. Further, while zoning matters are not necessarily irrelevant in determining whether a location is suitable for the issuance of a permit to retail alcoholic beverages, the City’s particular concerns about whether the operations of Montgomery’s Grill comply with the conditions placed on its zoning variance are more properly addressed by local zoning enforcement authorities rather than this tribunal.

Suitability of Applicant

9.The criteria for the issuance of a retail beer and wine permit also require that the applicant be a person of “good moral character.” S.C. Code Ann. § 61-4-520(1) (Supp. 2004). Further, Section 61-4-540 provides that a beer and wine permit should not be issued unless “the applicant is a fit person to sell beer and wine.” S.C. Code Ann. § 61-4-540 (Supp. 2004).

10.In the instant case, the Department contends that Petitioner is not fit to hold a beer and wine permit because she submitted three renewal permit applications in her deceased father’s name. While this tribunal does not take the submission of false or incorrect information on permit applications lightly, and notes that a misstatement or concealment of fact on a permit application is grounds for revocation of the permit, see S.C. Code Ann. § 61-4-540, it cannot conclude that Petitioner’s prior improper renewal applications render her unfit to hold a retail beer and wine permit. Given the nature of Montgomery’s Grill as long-standing family business, Petitioner’s submission of renewal permit applications in her father’s name suggests a lack of sophistication in legal affairs rather than a fraudulent intent. Moreover, once Petitioner learned of the problem with the permit renewals, she promptly applied to the Department for a new permit in her own name. Therefore, this Court finds that Petitioner’s submission of three permit renewal applications in her father’s name, standing alone, does not render her unfit to sell beer and wine at Montgomery’s Grill.

Conclusion

11.In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit, and there has not been a sufficient evidentiary showing that the location of Montgomery’s Grill is unsuitable for a beer and permit or that Petitioner is unfit to hold such a permit. Accordingly, Petitioner’s application for a retail beer and wine permit must be granted.

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 an on-premises beer and wine permit for the premises located at 3201 Austin Avenue in Charleston, South Carolina.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

April 6, 2005

Columbia, South Carolina