ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
These cases come before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing. Earnestine Dinkins, the sole owner of Petitioner Lil’s Place, Inc., seeks an on-premises beer and wine permit for a party shop located at 845 ½ North Main Street, Sumter, South Carolina, and a retail liquor license for a store located at 847 North Main Street, Sumter, South Carolina, to be known collectively as Lil’s Place. The Department of Revenue (Department) denied Petitioner’s permit and license applications because of the protests filed by the City of Sumter and Dorothy R. Toney on behalf of the NorthSide Community Association regarding the suitability of the proposed location. By an Order dated January 31, 2003, Petitioner’s challenges to these two denials were consolidated and the City of Sumter was granted leave to intervene in this matter in opposition to Petitioner’s applications.
After timely notice to the parties and the protestant, a hearing of this case was held on March 7, 2003, at the Administrative Law Judge Division in Columbia, South Carolina. The Department was excused from appearing at the hearing of this matter because it would have granted the permit and license but for the protests filed regarding the suitability of the location and it had no relevant evidence to present on that issue. Based upon the evidence presented regarding the nature of Petitioner’s proposed operations and the suitability of the proposed location, particularly that evidence concerning criminal activity at or near the location, Petitioner’s applications for an on-premises beer and wine permit and a retail liquor license are hereby denied.
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:
1. Earnestine Dinkins made application for an on-premises beer and wine permit and a retail liquor license with the Department on September 25, 2002, for the premises located at 845 ½ and 847 North Main Street, respectively, in Sumter, South Carolina. These applications were made in the name of Lil’s Place, Inc., a statutory close corporation of which Ms. Dinkins is the president and sole owner. These applications are incorporated into the record by reference.
2. The proposed location has been operated with a beer and wine permit and a retail liquor license for over thirty years. However, the location is not currently licensed for the sale of beer and wine or liquor and is not currently open for business. Most recently, the location was operated by William Richardson as Noon’s Café, which closed in April 2002 upon the expiration of its alcoholic beverage permit and license. Despite this closure, on February 19, 2003, officers of the Sumter Police Department conducted a search of the location and found Mr. Richardson operating the location and selling beer without a valid business license or valid beer and wine permit. As a result of this incident, Mr. Richardson was charged with several violations of state law and municipal ordinances. At the hearing of this matter, Mr. Richardson testified that he is currently legally ineligible to hold an alcoholic beverage permit or license.
3. After the closing of Noon’s Café, and prior to Ms. Dinkins’ application, Mr. Richardson’s sister, Lillie Thomas, applied for a beer and wine permit and retail liquor license for the location. However, the Department denied her applications because she was a legal resident of New York, and not South Carolina, at the time she filed her applications. Subsequently, at the urging of her uncle, Joseph Young, Ms. Dinkins submitted her applications for licensure at the location to the Department. Mr. Young is a business partner of Mr. Richardson, and Mr. Richardson is married to Mr. Young’s niece. At the hearing, Ms. Dinkins testified that the sole reason she is seeking a permit and license for the establishment is to keep the business in operation until Mr. Young, her uncle, can assume legal responsibility for the operation of the establishment.
4. While Ms. Dinkins testified at the hearing that Mr. Richardson would have no financial interest or other involvement in the operation of her business, the circumstances surrounding her application and the proposed operation of the business indicate that Mr. Richardson will still have a hand in the operation of establishment in question. Mr. Richardson was listed by Ms. Dinkins as the designated agent of Lil’s Place, Inc. in her applications. Mr. Richardson furnished Ms. Dinkins with the lease for the proposed location, which lists Lillie Thomas, Mr. Richardson’s sister, as the lessor of the premises. And, Eddie Jennings, a former manager for Mr. Richardson, was selected by Ms. Dinkins to manage her establishment. Further, it is clear to this trier of fact that Ms. Dinkins will not take an active role in the operation of the establishment. Ms. Dinkins testified that she has no prior experience and no real interest in operating the businesses in question. Ms. Dinkins failed to exercise independent judgment in her preparations for operating the business as evidenced by her signing of a lease brought to her by Mr. Richardson without any knowledge of the lessor or the validity of the lease and by her naming of Mr. Richardson’s manager, Mr. Jennings, a man she had only met two days prior to the hearing and who has a 2002 conviction for criminal domestic violence, as the primary manager of her business. And, Ms. Dinkins appeared to lack specific knowledge as to basic questions concerning the operation of the business, including the proposed hours of operation. In short, this tribunal finds that, in seeking this permit and license, Ms. Dinkins is essentially “fronting” for her uncle, Joseph Young, and his relative and business partner, William Richardson, who will likely primarily operate the business.
5. The proposed location is situated in an area zoned for, and occupied by, both residential and commercial buildings. The businesses operated at the location once coexisted harmoniously with the surrounding residences. However, in more recent years, the businesses have become the hub of a high crime area known for illegal drug activity and violent crime. As such, the operation of these businesses has heavily taxed the resources of the Sumter Police Department. At the hearing, Chief Patty Patterson of the Sumter Police Department testified to the significant burden placed on local law enforcement by crime related to the operation of the businesses at the proposed location, and in particular, to the number of man-hours that must be expended in patrolling the area around the location. Chief Patterson also presented statistics regarding the number of calls for service to the location in the past three years: the Sumter Police Department answered 125 calls to the location in 2000, 89 in 2001, and 41 in 2002, with 31 of those calls occurring between January 2002 and the closure of Noon’s Café at the end of April 2002. Chief Patterson testified that the number of calls to this location over the past three years exceed the number of calls for any other location in Sumter for that time period. At the hearing, Chief Patterson and several other officers and detectives of the Sumter Police Department further detailed the nature of the criminal activity that has occurred at the proposed location. This activity has included, among other things, disorderly conduct, fights and assaults, noise problems, illegal drug activity, robberies, and at least two murders.
6. Dorothy Toney, president of the NorthSide Community Association and a resident of the area since 1957, testified to the detrimental effect previous establishments at the proposed location have had on the area. In particular, she described the crime problems and noise disturbances created by the operation of those businesses. While there are no churches or schools near the proposed location, there are several residences in the immediate vicinity of the location and at least seventeen residences within two blocks of the location.
7. The City of Sumter has received a federal grant to revitalize the community surrounding the proposed location. As a part of this effort, the city has recently constructed an education center, known as a Hope Center, which serves children and the elderly, in close proximity to the proposed location. A playground for the Hope Center is currently under construction; this playground will be situated directly across North Main Street from the proposed location. The reintroduction of the sale of alcoholic beverages to the area would not be conducive to this effort by the community to revitalize the neighborhood.
8. Given the history of criminal activity at the proposed location and the proximity of the location to nearby residences, I find that the proposed location is unsuitable for the issuance of an on-premises beer and wine permit and a retail liquor license.
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 Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002).
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. § 61-4-520 (Supp. 2002) 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 suitable one. See id. § 61-4-520(6)-(7). S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 2002) establish the criteria for determining eligibility for a retail liquor license. Additional requirements are set forth in S.C. Code Ann. §§ 61-6-130 to 61-6-190 (Supp. 2002). Further, S.C. Code Ann. § 61-6-910(2) (Supp. 2002) provides that an application for a license to sell alcoholic liquors must be denied if “the store or place of business to be occupied by the applicant is not a suitable place.”
4. Although “suitable place” 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 permit or license. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5. 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).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
7. “[A] liquor license or permit may be properly 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).
8. The denial of a license to sell alcoholic beverages is appropriate where the proximity of the proposed outlet to areas of public congregation would aggravate problems related to the consumption of alcohol in public. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding the denial of a retail beer and wine permit where the applicant’s property was already the site of congregations of people attended by some consumption of alcohol and disorder). Such denial is particularly appropriate when the public areas surrounding the proposed location have been the source of constant law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975) (upholding the denial of a retail beer and wine permit upon evidence that local law enforcement had constant problems with public intoxication in the vicinity of the applicant’s store).
9. Given the history of frequent criminal activity and public disturbances at and around the proposed location, I find that the sale of beer and wine and alcoholic liquors at the location would be detrimental to the general welfare of the surrounding community.
There is ample evidence in the record establishing that proposed location has been the site of frequent criminal disturbances, including problems ranging from loitering and public intoxication to violent assaults and the sale of illegal drugs. The addition of the sale of beer and wine and liquor to this volatile mix would only exacerbate the serious crime problem in the area. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973), is instructive on this point. In that case, a grocery store and launderette was seeking a retail beer and wine permit. Local law enforcement officers testified that the store’s parking lot, which, through no fault of the store, had become a place for local residents to congregate, was the site of frequent disturbances and other criminal activity. The South Carolina Supreme Court upheld the Alcoholic Beverage Control Commission’s denial of the permit on the ground that, as “congregations of people on [the applicant’s] property are not infrequently attended by some consumption of alcohol and disorder . . . .[,] the Commission could reasonably have concluded that the situation would be worsened by making cold beer immediately available.” Id. at 58, 194 S.E.2d at 193. Such is the case here. Petitioner’s business and surrounding property have become a place of congregation not infrequently attended by the consumption of alcohol and other intoxicants and by disorderly and criminal conduct. Accordingly, I conclude that the condition of the community surrounding Petitioner’s property would be worsened by making beer and liquor immediately available from Petitioner’s establishment.
10. Further, in considering the nature of Petitioner’s establishment, the manner in which prior establishments at the location have been operated, and the proximity of the location to a residential community, I find the proposed location unsuitable for continued operation with a beer and wine permit. There are inherent consequences from the operation of a party shop with the on-premises consumption of alcohol that are not conducive to the harmonious coexistence of such an establishment with a surrounding residential community. The residents of the community surrounding the proposed location are entitled to be free of the kinds of noise disturbances, criminal activity, and other nuisances that are associated with the operation of such businesses generally and that have been associated with the establishments at this particular location. “The right of a person to use his own property does not entitle him to violate the peace and comfort of others in the vicinity.” 3 S.C. Juris. Breach of Peace § 7 (1991). In the case at hand, the manner in which prior establishments at the proposed location, including Noon’s Café, have been operated in recent years has violated the peace and comfort of nearby residents and thus rendered the location unsuitable for the continued sale of beer and wine.
11. This tribunal is well aware that the proposed location has been permitted for the sale of beer and wine and licensed for the sale of liquor in the past. Nonetheless, this fact alone does not entitle Petitioner to licensure of the location. A permit to sell alcoholic beverages is neither a contract nor a property right. Rather, it is merely a permit, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do, and to be enjoyed only so long as the restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Moreover, when considering the recent history of the location, the problems associated with previous permitted establishments at the location, in particular problems with criminal activity, suggest that the proposed location is unsuitable for the sale of alcoholic beverages.
12. As the trier of fact, the issuance or denial of a permit or license rests within the sound discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit and license in the instant case is compelled because the issuance of the requested permit and license would be detrimental to the inhabitants of the community surrounding Petitioner’s establishment.
ORDER
Based upon the Findings of Fact and Conclusions of Law set forth above,
IT IS HEREBY ORDERED that Petitioner’s applications for an on-premises beer and wine permit and a retail liquor license for the premises located, respectively, at 845 ½ and 847 North Main Street, Sumter, South Carolina, are DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
March 24, 2003
Columbia, South Carolina
Ms. Dinkins testified that she had never met Ms. Thomas, that she did not witness Ms. Thomas’ signature of the lease, and that she had no knowledge of Ms. Thomas’ authority to lease the premises.
Further, because of his recent designation as manager, Mr. Jennings was not listed on the applications as having managerial responsibilities and the South Carolina Law Enforcement Division (SLED) did not conduct a criminal background check on Mr. Jennings.
Ms. Dinkins testified that she would retain her full-time job with the City of Sumter’s zoning department even after the proposed establishment is operating, and thus would have to delegate most of the day-to-day management responsibilities of the business to an employee.
Although there are no schools near the location, Morris College is located approximately four blocks away and has a track about one block from the proposed location.
In addition to the requirement that the location be a suitable place, the retail liquor license statutes prohibit the licensure of an establishment within a municipality if the business is located within three hundred feet of any church, school, or playground. See S.C. Code Ann. § 61-6-120(A) (Supp. 2002). However, this provision does not preclude the licensure of the establishment in question in this matter. While the Hope Center playground will, upon completion, be less than 300 feet from the proposed location, it was not in existence at the time of Petitioner’s applications and thus cannot be considered with regard to the statutory minimum distance between a licensed establishment and a playground. See AK&W, Inc. v. S.C. Dep’t of Revenue, Docket No. 01-ALJ-17-0528-CC (S.C. Admin. Law Judge Div. Apr. 19, 2002). Further, while Morris College has a track approximately one block from the location, colleges and universities are not contemplated within the definition of a “school” under the alcoholic beverage licensing laws. See Pandy v. S.C. Dep’t of Revenue, Docket No. 95-ALJ-17-0527-CC (S.C. Admin. Law Judge Div. Sept. 26, 1995).
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