South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
The Pulse, LLC vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
The Pulse, LLC

Respondents:
South Carolina Department of Revenue, Robert Meyers, Ung H. Kim, Chung Sung, Duk Choe and James Kong
 
DOCKET NUMBER:
05-ALJ-17-0305-CC

APPEARANCES:
James H. Harrison, Esquire, for Petitioner

Dana R. Krajack, Esquire, for Respondent SCDOR

Brian L. Boger, Esquire, for Respondents Meyers, Kim, Sung, Choe and Kong

Protestants: J.W. Bonniville, Mrs. Robert F. Gabriel, Robert Myers
 

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


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court