ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004) on the application of Petitioner George Dollard, d/b/a GD’s Place, for the renewal of his on-premises beer and wine permit for a nightclub located at 342 Eugene Street, Lake City, South Carolina. The South Carolina Department of Revenue (Department) would have granted the permit but for the protest filed by neighboring residents concerning the suitability of the proposed location. After timely notice to the parties and the protestants, a hearing of this matter was held on September 13, 2005, at the Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location and upon the applicable law, I find that Petitioner's application for the renewal of his on-premises beer and wine permit must be granted.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:
1. On April 21, 2005, Petitioner George Dollard submitted an application to the Department for the renewal of the on-premises beer and wine permit for the premises located at 342 Eugene Street, Lake City, South Carolina. Without objection, this renewal application and the Department's file on the application were made a part of the record by reference.
2. Petitioner is over twenty-one years of age, is a legal resident and citizen of the United States, and is a legal resident and citizen of the State of South Carolina. Further, Petitioner resides and maintains his 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.
3. Petitioner is a person of good moral character and has no record of any criminal convictions. Moreover, Petitioner has no record of violating the laws governing the sale of alcoholic beverages, and has not had a beer and wine permit issued to him suspended or revoked.
4. Petitioner currently holds an on-premises beer and wine permit, number 32031321-PBW, for the location in question and operates the location as a nightclub. Petitioner has held a beer and wine permit for the premises since 2003 and has run a nightclub at the location for the past two years.
5. The nightclub is situated in the midst of several residences and a church in Lake City, South Carolina. Petitioner resides in a home adjoining his nightclub with his wife and two children.
6. There is a church next door to Petitioner's club. However, neither the church, nor its minister, is a protestant at this hearing. The church has no complaint with Petitioner’s club.
7. The Protestants reside in the immediate vicinity of the location in question and testified at the hearing to the negative impact of the nightclub's operation on the surrounding residences. Robin Cooper, the designated spokesperson for the Protestants, described concerns such as increased crime, decreased property values, and safety concerns. Mrs. Cooper described one incident in which a murder occurred in close proximity to Petitioner’s club. Mrs. Cooper also stated complaints are issued to the Florence County Sheriff’s Department each week regarding crime in the area.
8. In response to the Protestants' concerns, Petitioner conceded that problems do exist in the local community. Petitioner states that his club is not responsible for these problems, and that none of the problems have occurred in his club or on the premises to the best of his knowledge. Petitioner states that his club has not caused any criminal activity. Petitioner asks anyone causing trouble to leave. He says they leave without incident about ninety (90) percent of the time. He has only had to call the police on a few occasions.
9. Petitioner states that his property value has recently increased. He states he has a good relationship with the pastor at the church next door. His clientele is made up of mostly older people in the community.
10. Sara McClam, who testified on Petitioner’s behalf, indicated a nightclub has operated at the location since 1990 without incident.
11. The Florence County Sheriff’s Department was not a protestant and did not appear on behalf of Protestants, who alleged criminal conduct occurs frequently at Petitioner’s club.
12. There is no evidence in the record linking the crime in the area to Petitioner’s club.
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 Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & 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. 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).
4. Although "proper 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 permit. 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. The Protestants assert that law enforcement concerns warrant a denial in this case. Certainly, it is true that in making a determination on whether a location is proper, consideration should be given to the need for likely police intervention. For example, whether the evidence shows the permit will be in an area that has been a source of law enforcement problems is a factor to consider. Palmer v. S.C Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Whether the evidence shows law enforcement authorities already had significant problems with public intoxication at or near the location is another factor to consider. Roche v. S.C Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975).
Here, however, a failure of proof exists sufficient to deny the permit. For example, this record contains no testimony from any law enforcement officer. On the contrary, the existence of a need for police intervention is asserted through unsubstantiated anecdotal evidence. No persuasive evidence establishes that the permit will be in an area that has been a source of law enforcement problems.
Therefore, considering the facts that Petitioner has operated at the location with a beer and wine permit since 2003, that an establishment with a beer and wine permit has operated at the location since approximately 1990, that no police reports of violations are in the record, and that the evidence of disturbances has not been linked to the location, a denial cannot rest upon the potential and unproven need for future police protection.
8. Significant consideration must be given to the fact that the operation of this location with a beer and wine permit has continued for approximately fifteen years. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). For a location with a continuous operation, the relevant issue is whether the evidence shows that the location is now any less suitable than during the former time periods for which it held a permit or license. Id. Here, given a fifteen year history, the evidence is devoid of a showing of what practices were at an acceptable level in the past and of how those practices have now deteriorated to such a point that the renewal should be denied. Such a lack of evidence being the case, the renewal application does not warrant a denial.
9. Thus, after considering all of the factors relevant to the proposed location and after giving due weight to the evidence presented at the hearing, the renewal permit cannot be denied based on the record made in this case. Accordingly, the South Carolina Department of Revenue shall grant to George Dollard a renewal for an on-premises beer and wine permit to be utilized at 342 Eugene Street, Lake City, South Carolina.
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 342 Eugene Street, Lake City, South Carolina.
AND IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative Law Judge
September 14, 2005
Columbia, South Carolina |
