SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2001), § 61-4-520 (Supp. 2001), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2001) for a contested case hearing. Gwendolyn Harris seeks an on-premise beer and wine permit for the above-captioned establishment. On October 3, 2002, Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protests of concerned citizens, the Department would have found this location to be suitable. That motion was granted by my Order dated October 17, 2002. A hearing was held in this matter on November 20, 2002, at the offices of the Administrative Law Judge Division.

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 Petitioner and the Protestant, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Department, and the Protestant.

2. R&R of Gaffney, Inc., (R&R) seeks an on-premise beer and wine permit for its location in Cherokee County at 455 East Jr. High Road, Gaffney, South Carolina. R&R is set up as a sports bar that contains pool tables and that can be rented out for private parties, such as family gatherings, fashion shows and other special occasions. This location had been obtaining permits on a "per event" basis until the county began denying the Petitioner these permits for single parties. As a result of that denial, the Petitioner decided to seek this permanent permit from the Department. If granted the permit, the hours of operation would be:

Thursday through Saturday, 8:00 p.m. to 12:00 a.m. ⁽¹⁾

This location has not been previously permitted and was formerly a cement store.

3. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001) concerning the residency and age of the applicants are properly established. Furthermore, they have not had a permit or license revoked within the last two (2) years and public notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The applicants have no criminal record and are of sufficient moral character to receive a beer and wine permit. However, this location had a disturbance among its patrons at the second locally-permitted event it hosted that required local law enforcement to intervene.

5. The proposed location is not unreasonably close to any church, school or playground. However, a public housing development is situated in close proximity to this proposed location, and the nearest resident is approximately 150 feet away.

6. Sheriff Bill Blanton, the Protestant in this case, contends that this location is not suitable because it is too close in proximity to the public housing development, which could result in an increase in foot traffic from the development to the proposed location. He testified that local law enforcement has spent considerable time and resources to reduce the criminal activity in this area and has had recent success keeping it to a minimum. Also, the county has developed a "one strike and you're out" policy for the residents of the housing development. This rule requires that once a resident is convicted of a crime they must move out of the development. As there are no other establishments in the area that serve beer and wine on-premises, Sheriff Blanton testified that placing a bar in such close proximity to the housing development would result in an increase in criminal activity and most likely would place a greater burden on local law enforcement. Sheriff Blanton stressed that he has nothing against the applicants personally and knows them to be quite reputable in the community and that his protest is strictly about the proposed location of this bar.

7. I find that the permitting the proposed location would hamper the efforts of law enforcement to improve this community and therefore the location is unsuitable for an on-premise beer and wine permit.

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2001) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2001) sets forth the requirements for the issuance of a beer and wine permit.

4. Although "proper location" is not statutorily defined, the Administrative Law Judge Division is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 181 (1981). The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct. App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973). Furthermore, in considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301, (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973).

5. "A liquor license or permit may properly be 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).

6. 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 by itself to deny the application. See 45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119 (1981). Based on the foregoing Findings of Fact, I conclude that this proposed location would adversely impact this community.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application for an on-premise beer and wine permit of R&R of Gaffney, Inc., is denied. ⁽²⁾

AND IT IS SO ORDERED.

____________________________

Ralph King Anderson III

Administrative Law Judge

January 10, 2003

Columbia, South Carolina

1. In the Petitioner's application for this permit, she set forth that her hours of operation would be Monday through Friday, 3:00 p.m to 2:00 a.m., and Saturday, 2:00 p.m to 2:00 a.m. But at the hearing, she set forth that her hours would be much more limited. However, I find this discrepancy to be moot as I am not granting this permit.

2. Even though I am denying the issuance of this permit, the Petitioner can still apply for permits on a "per event" basis.