ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC
or Court) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310
et seq. (2005), § 61-2-260 (Supp. 2004), § 61-6-1820 (Supp. 2004) and §
61-6-1825 (Supp. 2004). Roger K. LeBlanc, d/b/a Salem Saloon (Petitioner),
seeks a sale and consumption (minibottle) license for the location at 105 Nikki Lynn Lane, Salem, South Carolina (location). Derrick Allman, Richard Black,
Edward Lemons, Samuel Bass, Robert Hunter, Reverend Carl Krezdorn, and Sheriff
James Singleton (Protestants) filed protests to the application with the South
Carolina Department of Revenue (Department). Because of the protests, the
hearing was required. Other than the filed public protests, the Department has
found that the Applicant has met all other statutory requirements.
A hearing in this matter was held on January 12, 2006 at
the offices of the Administrative Law Court in Columbia, South Carolina. Both
parties and Protestants appeared at the hearing. Evidence was introduced and
testimony was given. The Respondent’s file on this application was admitted in
evidence without objection. After carefully weighing all the evidence, I find
that Petitioner's request for a minibottle license should be granted with
restrictions.
FINDINGS OF FACT
Having observed the witnesses and reviewed the exhibits
presented at the hearing and closely passed upon their credibility, and having
taken into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of the evidence:
1. Notice of the time, date, place and subject
matter of the hearing was timely given to all the parties and the Protestants.
2. Petitioner seeks a minibottle license for the
location at 105 Nikki Lynn Lane, Salem, South Carolina. The location currently
holds an on-premises beer and wine permit.
3. Mr. LeBlanc is over the age of twenty-one. He is
a legal resident of the State of South Carolina and has maintained his
principal place of abode in this state for at least thirty (30) days prior to
making this application. Mr. LeBlanc is of good moral character and has not had
an alcoholic permit or license revoked in the last two (2) years.
Mr.
LeBlanc served this country in the U. S. Navy as a Senior Chief Petty Officer,
retiring after 22 years service. While in the Navy he served as an alcohol and
substance abuse counselor.
4. Notice of the application was lawfully posted
both at the location and in a newspaper of general circulation.
5. The location is and will be a restaurant
primarily and substantially engaged in the preparation and serving of meals.
Its hours of operation will be from 3:30 p.m. to 12:00
a.m., Monday through Friday, and from 12:00 p.m. until 12:00 a.m. on Saturday.
The location is and will be closed on Sunday.
6. The location is on Highway 130 leading
through Salem, S.C., a municipal corporation, but outside the corporate limits.
There are residences in the area in close proximity to the location. However,
there is no issue about zoning.
7. The location in question, while under
Petitioner’s management, has held an on-premises beer and wine permit for approximately
18 months and, under different management, was similarly permitted to sell beer
and wine for at least 6 years prior to that.
8.
Under Petitioner’s management, there has been only one call for police
assistance and that was for a minor auto collision in his parking lot.
9.
Petitioner personally picks up beer cans in the area surrounding the
location. This was acknowledged by one of the Protestants. Likewise, one of the
Protestants acknowledged that Petitioner has run a good business and a “tight
ship”. Another acknowledged that he did not believe that Petitioner would sell
any alcohol to underage individuals.
10. The
most significant problem experienced in the past that can be directly
attributed to the operation of the business by Petitioner is occasional loud
music.
11. One protestant is Rev. Carl Krezdorn of
the Baptist church in Salem. Four other Protestants present at the hearing are
members of his church. The other Protestant present at the hearing was a member
of the Oconee County Sheriff’s Department.
12. The
substance of the concerns of the Protestants are:
(a)
Remoteness of the location and consequent length of response time by Oconee
County Sheriff’s department, possibly as much as 30 minutes and, generally,
other concerns about adequate police protection.
(b)
Substantial drug abuse problems in the area.
(c)
Effect on the children in the area and in particular those walking by on the
way to and returning from school as well as those passing in school buses.
(d)
The bad effects of alcohol on society, and especially on young people.
(e)
The possibility of vehicle accidents arising out of the consumption of
alcoholic liquor at Petitioner’s business.
13. The proposed location is suitable for a
minibottle license with the restrictions set forth below.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the
following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (2005) grants
jurisdiction to the Administrative Law Court to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 2004) grants
the Administrative Law Court the responsibility to determine contested matters
governing alcoholic beverages, including liquor.
3. S.C. Code Ann. § 61-6-1820 (Supp. 2004) sets
forth the requirements for the issuance of a sale and consumption (minibottle)
license. Section 61-6-1820(1) provides that an applicant may receive a license
upon the finding that "[t]he applicant is a bona fide nonprofit
organization or the applicant conducts a business bona fide engaged primarily
and substantially in the preparation and serving of meals or furnishing of
lodging."
4. 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 of an
applicant for alcohol permits and licenses 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).
5. 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); see
also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996)
(holding that a trial judge, when acting as a finder of fact, "has the
authority to determine the weight and credibility of the evidence before
him"). 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 Woodall v. Woodall, 322 S.C. 7,
10, 471 S.E.2d 154, 157 (1996).
6. Although "proper location" is not
statutorily defined, the Administrative Law Court 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 operation 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 any adverse effect the proposed location will have on the
community. Palmer, supra. 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. Id.
7. Unless there is 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).
8. Permits and licenses issued by this state for
the sale of liquor, beer and wine are not property rights. Rather, they are
privileges granted in the exercise of the State's police power to be used and
enjoyed only so long as the holder complies with the restrictions and
conditions governing them. The Administrative Law Court, as the tribunal
authorized to grant the issuance of a license, is likewise authorized to revoke
or suspend the license for cause. See Feldman v. S.C. Tax Commission,
203 S.C. 49, 26 S.E.2d 22 (1943).
9. Furthermore, S.C. Code Ann. Regs. 7-200.1(I)
(Supp. 2004) authorizing the imposition of restrictions on licenses, provides:
Any written stipulation and/or agreement which is
voluntarily entered into by an applicant for a permit or license between the
applicant and the Department, if accepted by the
Department, will be incorporated into the basic requirements for the enjoyment
and privilege of obtaining and retaining the permit or license and shall have
the same effect as any and all laws and any and all other regulations
pertaining to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute
sufficient grounds to revoke said license.
10. With the restrictions set forth below, Petitioner
meets the statutory requirements for holding a minibottle license at the
location. The objections expressed by the Protestants are primarily based on concerns
and problems occurring and existing in the community that cannot be attributed
to Petitioner’s business.
The Petitioner has an excellent history of operating the
location. There were minimal complaints from neighbors concerning noise, and no
complaints concerning trash. However, I am concerned about the rights of the
individuals to live in their homes in a safe and quiet environment. As a
condition for keeping this license, Petitioner must prevent any actions or
activities at Salem Saloon which would or could deny his neighbors the right to
live comfortably and without objectionable noise in the privacy of their homes.
Accordingly, I find that the
location would not have an adverse impact on the surrounding community and is
suitable for a minibottle license as long as it conforms to the restrictions
set forth below.
ORDER
Based upon the above Findings
of Fact and Conclusions of Law, it is hereby: ORDERED that the
application for a minibottle license by Roger K. LeBlanc, d/b/a Salem Saloon, at
105 Nikki Lynn Lane, Salem, South Carolina is GRANTED upon Roger K.
LeBlanc signing a written agreement with the South Carolina Department of
Revenue agreeing to the restrictions set forth below:
RESTRICTIONS
1. Petitioner and his employees shall not allow
excessive noise to emanate from Salem Saloon (any noise
that is noticeably audible within any local residence with closed doors and
windows shall be considered excessive). For the purposes of this restriction,
any conviction for the violation of any applicable county noise ordinance shall
be considered prima facie evidence of a violation of this provision.
3. No music, including live music, or any
activities sponsored, authorized or acquiesced to by Petitioner, is permitted
on the outside of the location.
4. Alcoholic liquor will be sold on the
licensed premises only between 6:00 p.m. and 12:00 a.m. (midnight). This
restriction does not apply to beer and wine sales.
IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation
against the minibottle license and, after notice to the Department and a
hearing, may result in a fine, suspension, or revocation of the minibottle license.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
January 17, 2006
Columbia, South Carolina
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