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) for a contested case hearing. Destiny Music, LLC, d/b/a Earshot (“Petitioner”), seeks an on-premise beer and wine permit for a music store and coffee shop located at 20 Coffee Street, Greenville, South Carolina.
Respondent South Carolina Department of Revenue (“Department”) denied Petitioner’s application for the permit because of the protest filed by a neighboring resident concerned with the number of establishments already serving alcohol in the surrounding area, the increased crime potential, and the possibility of an increase in underage drinking occurrences.
An expedited hearing in this matter was held on October 4, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Protestant Anthony Conway (“Protestant/Intervenor”). On September 28, 2005, Anthony Conway, the sole protestant in this case, filed a Motion For Leave To Intervene with this Court. Anthony Conway was granted leave to intervene by the Court with no objection at the hearing.
After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s on-premises beer and wine permit shall be granted upon South Carolina Law Enforcement Division’s determination that adequate restroom facilities exist at the location. The on-premises beer and wine permit will be issued with the restrictions listed below.
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. The ALC has personal and subject matter jurisdiction.
2. Notice of the time, date, place and subject matter of the expedited hearing was timely given to all parties and the Protestant.
3. The Petitioner, Destiny Music, LLC, d/b/a Earshot, seeks an on-premise beer and wine permit for the premises located at 20 Coffee Street, Greenville, South Carolina (“location”). The location is in an urban area inside the city limits of Greenville, South Carolina. The location is surrounded by restaurants, retail shops, and some residential areas (a planned mixed-use community).
4. Jason Andrew Dennis and his brother John D. Dennis, IV are the principals in Destiny Music, LLC, a South Carolina limited liability company.
5. Jason Andrew Dennis is over the age of twenty-one. He is a legal resident of the State of South Carolina, residing in Greenville, South Carolina.
6. Notice of Petitioner’s application was published in The Greenville News, a newspaper published and circulated in Greenville County, South Carolina, once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.
7. Petitioner currently sells music in a variety of forms at the location. Petitioner also has a coffee and dessert bar at the location. Mr. Dennis testified that upscale beer and wine sales are a part of the business plan for the location. He states that a zoning variance has already been obtained from the City of Greenville in order to sell beer and wine at the location.
8. Petitioner’s business is an up scale retail music store including state of the art music technology. While the emphasis is on music sales, location also has a small dessert / coffee bar to which owners want to add mostly imported beers and premium wines.
9. The principals of the Petitioner appear to be responsible, mature individuals who have made a major financial investment in this business.
10. The location is within one block of Main Street in the downtown commercial center of Greenville. While there are a significant number of other alcohol licenses in the area, it is clear from the testimony that the City of Greenville has an ongoing development and control plan for this area. Evidence of the on going control plan included a recently passed city ordinance requiring certain former late night businesses in the area to close not later than 2 AM.
11. The applicant business has been issued a “special exception” permit for the operation of their business by the City of Greenville. The Board Decision for Application # S 05-16, issued August 18, 2005, indicates “The special exception is consistent with the spirit, purpose and intent of the City of Greenville Comprehensive Plan and Zoning Ordinance.” That permit also imposes the following conditions on the business’s hours of operation and other activities:
1. The closing hours shall be no later than 12:00 midnight on Saturday through Wednesday and 1:00 a.m. on Thursday and Friday.
2. There will be no liquor served, only beer and wine.
3. This Special Exception will only be valid if applicant is able to obtain a S.C. Beer and Wine Permit for on-premise consumption.
4. Dancing will not be allowed; outdoor seating will not be allowed; a cover charge to enter the establishment will not be allowed.
12. Protestant/Intervenor argues the citizens of downtown Greenville are more than adequately served by the number of existing locations that currently are permitted to sell beer and wine. Mr. Conway states that 7 locations serving or selling alcohol exist within 300 feet of the location, 17 locations within 500 feet, 26 within 800 feet, and 33 within 1500 feet.
13. Mr. Conway is concerned with increased crime in the area as a result of more establishments serving alcohol. Mr. Conway testified that his car has been hit by a drunk driver leaving a parking lot in the area. He also testified that the bar-hopping trends in the area make it difficult to regulate how many drinks individuals are served. Mr. Conway is concerned with the amount of underage drinking occurring in downtown Greenville as well. He supported his concerns with reports from the Greenville Police Department showing the number of incidents in the city.
14. Mr. Conway also testified that the city is trying to curb some of the improper conduct. He introduced Greenville City Ordinance No. 2005-63 (“Ordinance”), passed by the City Council on July 11, 2005, into evidence to support his testimony. The Ordinance addresses the concerns of citizens residing in the Central Business District by imposing hours of operation restrictions for establishments serving beer and wine on premises. “All establishments selling beer and wine for on premises consumption must cease serving beer or wine no later than 2:00 a.m. each day, and shall not commence serving those beverages prior to 6:00 a.m.” The Ordinance addresses the City Council’s policies and practices which promote residential uses in the Central Business District. It recognizes the complaints of citizens of the Central Business District concerning boisterous conduct in the early morning hours. The Ordinance strikes a balance between the interest of those citizens and the commercial establishments who sell beer, wine and liquor by limiting the hours of sale.
15. Protestant/Intervenor is concerned about late night drinking, lewd conduct such as public urination and vomiting, and increased crime resulting from another establishment receiving a beer and wine permit. Mr. Conway claims the police force is already thinly spread. He also claims the city planners intended more residential and retail use in the area and less restaurant and bar use.
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. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (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. 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. § 61-4-520 (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. S.C. Code Ann § 61-4-520(6)-(7) (Supp. 2004).
5. 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).
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. 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. ABC 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)).
8. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for permits and licenses to sell alcoholic beverages using broad but not unbridled discretion. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.
9. 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).
10. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding a beer and wine permit at the location. Although cognizant of the Protestant/Intervenor’s concerns, I conclude that the proposed location is a proper one for granting the permit. The Department would have issued the permit but for the Protestant/Intervenor’s timely protest.
11. In the case at hand, I find that the proposed location is suitable for Petitioner to operate a music store with an on-premises beer and wine permit. The location is in an urban area inside the city limits of Greenville, South Carolina. The location is surrounded by restaurants and retail shops. On two occasions within the past ninety (90) days, the City of Greenville, directly through its Council and through its zoning department, has approved, with appropriate limitations, the sale of beer and wine in the location for which Petitioner seeks a permit.
I find that Petitioner’s proposed restaurant operations will not be detrimental to the welfare of the surrounding community. As such, it will be able to peaceably coexist with the neighboring residential community, much as other establishments in downtown Greenville coexist with nearby residences. While Protestant/Intervenor has introduced evidence of crime in the area, he has not shown that this location is responsible for any of that crime, or that this location will contribute to that crime in the future. Protestant/Intervenor has also shown that the City of Greenville is concerned with the interrelation of the residents and businesses in the area. However, basing his argument on the City of Greenville’s belief is also to his detriment in this case. It is clear that the City of Greenville contemplated these concerns while issuing the special exemption to the Petitioner. Therefore, it is clear that the city is not opposed to Petitioner selling beer and wine at the location.
12. In reaching a decision in this matter, this tribunal is constrained by the record before it and by the applicable statutory and case law. Here, Petitioner meets all of the statutory and regulatory 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 is unsuitable for Petitioner’s proposed beer and wine sales or that the issuance of the permit would have an adverse impact on the surrounding community. Therefore, I find that Petitioner’s application for an on-premises beer and wine permit is granted with the following conditions, which mirror those conditions imposed by the City of Greenville Board of Zoning Appeals in the Board Decision for Application # S 05-16:
1. The closing hours shall be no later than 12:00 midnight on Saturday through Wednesday and 1:00 a.m. on Thursday and Friday.
2. There will be no liquor served, only beer and wine.
3. Dancing will not be allowed; outdoor seating will not be allowed; a cover charge to enter the establishment will not be allowed.
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 20 Coffee Street, Greenville, South Carolina, with the conditions listed above, upon South Carolina Law Enforcement Division’s determination that adequate restroom facilities exist at the location.
AND IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative Law Judge
October 6, 2005
Columbia, South Carolina |
