ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes
before the Administrative Law Court (Court) upon the request of the Petitioner
The Pulse, LLC d/b/a The Pulse, for a contested case hearing pursuant to S.C.
Code Ann. §§61-4-520 et seq. and 61-6-1825 et seq.
(Supp. 2004) and the attendant regulations in 23 S.C. Code Ann. Reg. 7-200.1
(Supp. 2004). The Petitioner seeks an on-premises beer and wine permit and
restaurant mini-bottle license for the location at 1807 Decker Boulevard,
Building 20, Columbia, South Carolina. This matter is presently before the
Court because of a protest by several concerned citizens concerning the
suitability of the location. Several Protestants moved to intervene in this
matter and that motion was granted by my order of September 30, 2005. After
notice to all parties and the Protestants, a hearing was conducted on October
11, 2005, at the Court in Columbia, South Carolina. P.L. Meek had filed a
protest against this location, but was not present at the hearing. The protest
of P.L. Meek is deemed abandoned. At the hearing, the parties and Protestants
were present as indicated above. Based on the evidence before me, I find and
conclude that this permit and license should be denied.
FINDINGS
OF FACT
Having observed
the testimony of the witnesses and exhibits presented at the hearing and having
closely passed upon their credibility, I make the following Findings of Fact by
a preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit and minibottle
restaurant
license for the location known as The Pulse, LLC, located at 1807 Decker
Boulevard, Building 20, Columbia, South Carolina.
2.
The Respondent, South Carolina Department of Revenue, determined that
the
location and the Petitioner met all
statutory requirements at the time of the application and would have granted
the permit but for the protest as to suitability of the location.
3. The
location is in an area of Columbia that is a mixture of residential and
commercial establishments. This
location is in Sandwood Plaza a small strip shopping center with residential
areas behind and nearby. The Pulse will serve hamburgers, hot dogs, steaks,
shrimp, chicken, appetizers, etc. The owner anticipates being open from 9:00
PM to 2:00 AM Wednesday through Saturday. He plans to hire a security firm to
maintain order inside and outside the location. Employees will patrol the
parking lot and pick up litter. Most of the other stores in the shopping
center are closed by 9 PM.
4. There
are currently other facilities in the area that serve alcohol, with three other
licensed locations in the same strip shopping center. The location has seating
for approximately 80 patrons, with a total capacity of 298. There are spaces
for 156 cars in the shopping center’s common parking lot.
5.
The applicant is of good moral character. The State Law Enforcement
Division’s
criminal background investigation
revealed no criminal violations for the applicant.
6.
The Petitioner is at least twenty-one years of age, a U.S. citizen, and
citizen of the
State of South Carolina, and has
maintained his principal residence in the State for at least thirty days prior
to the application.
7.
Notice of the application appeared in The Columbia Star, a
newspaper of general
circulation in the area of the
proposed location, once a week for three consecutive weeks and notice was
posted at the proposed location for fifteen days.
8. There
have been law enforcement problems in the area, despite the fact that this
location is not yet open. On September 23, 2005, there was a shooting in the
parking lot. The owner of The Pulse called the police. Another fight broke
out about one-half hour later and additional law enforcement responded. The
Petitioner was not open and was not serving alcohol, but his location had been leased
for a private party for high school students from Richland Northeast High
School. At the hearing, a law enforcement officer who responded to the
incident testified that approximately 50 law enforcement officers from many
different law enforcement agencies responded to that incident on September 23,
2005. He testified that tin his three years as a law enforcement officer, this
was the worst incident he’s observed on Decker Boulevard. There has not yet
been a disposition on any criminal charges stemming from this incident.
9. The
Decker Boulevard community where this location is proposed is primarily an
ethnic community with several Korean and Hispanic families in the area. The
Sandwood Plaza has a Korean Grocery Store; many Korean families bring their
children to this store. Two of the owners of the Plaza testified that despite
the Petitioner’s claims that he has access to the entire parking lot, that
certain spaces are assigned to certain stores in the center.
11. The
Protestants live near the proposed location. They fear violence will occur
at the location and spill over into
their community. They have had problems in the past with noise and litter from
the location. Several Protestants testified about the family nature of the
ethnic communities in the neighborhood and the detrimental effect of this type
of location. In addition, there are several schools, day care centers and
residential areas nearby. Sandwood Hills and Wellesley Place are established
residential areas nearby that could be disturbed by the noise, traffic and
trash from The Pulse. Finally, the Decker Boulevard corridor has received a
community revitalization grant to re-establish this area. I find that this
location would be incongruous with that mission.
CONCLUSIONS
OF LAW
Based upon the
foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The
South Carolina Administrative Law Court has jurisdiction over this matter
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004).
2. The
factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that
decision. Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984).
3. Although
“proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of the proposed business
location of an applicant who is seeking a permit to sell beer and wine. Fast
Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F.
Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App.
1984) (beer and wine permit).
4. It is
also the fact finder’s responsibility to judge the demeanor and credibility of
the witnesses and determine the relevance and weight of any testimony offered.
5. 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 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). Any evidence adverse to the location may be considered. Byers
v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991).
Further, the Judge may consider whether there have been law enforcement
problems in the area. Palmer v. South Carolina ABC Comm’n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the
proximity or the absence of other licensed locations in the immediate vicinity,
as well as the existence of small children in the area.
6. In
considering the suitability of a location, it is relevant to consider the
previous history of the proposed location and to determine whether the
testimony in opposition to a permit consists of opinions and conclusions or is
supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973).
7. 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 alone
to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. S.C.
Code Ann. § 61-4-525 (Supp. 2004) provides that a person residing in the county
in which a beer and wine permit is requested to be granted, or a person
residing within five (5) miles of the location, may protest the issuance of
the permit if he files a written protest.
9. Permits
and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10. After
considering all the relevant factors, I find that while statutory requirements
of the Petitioner to hold a license are met, that the location is unsuitable.
It appears that the proposed nature of the Petitioner’s business would be in
direct conflict with the family oriented nature of the shopping center and the
ethnic community’s attempts to revitalize the Decker Boulevard area. In
addition, the area is adequately served by alcohol outlets currently. Finally,
this location is not even open yet and there have already been law enforcement
problems in the area. Although I appreciate the Petitioner’s efforts to hire
sufficient security staff to protect his patrons and the property, it was not
enough in September.
ORDER
Based upon the
above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue deny the Petitioner’s application
for an on-premises beer and wine permit and minibottle restaurant license.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
November 22, 2005
Columbia, SC |