ORDERS:
FINAL ORDER AND DECISION
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. Lucky Shot Sports Grill, LLC, d/b/a 24 Hour
(“Petitioner”), seeks an on-premise beer and wine permit and a minibottle
license for a restaurant to be located at 6000 Augusta Road, Greenville, South Carolina.
Respondent
South Carolina Department of Revenue (“Department”) denied Petitioner’s
application for the permit and license based on the protest filed by Helen V.
Irby, a nearby resident. A hearing in this matter was held on November 10,
2005, at the Greenville County Courthouse, 305 E. North Street, Greenville, South Carolina. All parties appeared at the hearing, along with Protestant
Helen Irby. Helen Irby filed an improper request to Intervene with this Court
on September 21, 2005 and did not serve it on the parties in the case.
Notwithstanding these failures, the Court, at the hearing, allowed intervention
by John Gambrell, Jesse Clearwater, George Hambrick, Reverend Marco Yeargin,
and Pastor Anthony Darrington. The intervention was allowed because, in the
opinion of the Court, the public interest required the same. No delay resulted
from the intervention.
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 and
Petitioner’s minibottle license should be denied.
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.
Notice of the time, date, place and subject matter of the expedited hearing was
timely given to all parties and the Protestant. All involved consented to the
expedited hearing.
2.
The Petitioner, Lucky Shot Sports Grill, LLC, seeks an on-premise beer and wine
permit and minibottle license for the premises located at 6000 Augusta Road, Greenville, South Carolina (“proposed location”). The proposed location is in a shopping
center at the intersection of Augusta Road and Stratford Road. The location is
outside the Greenville City Limits. Rock of Ages Baptist Church and Kiddie
Kampus Day Care are in close proximity to the proposed location. The area is
more residential than commercial.
3.
Pyong Sim Morales (“Mrs. Morales”) is an organizer and the registered agent of
Lucky Shot Sports Grill, LLC, a South Carolina limited liability company.
4.
Mrs. Morales is over the age of twenty-one. She is a legal resident of the
State of South Carolina, residing in Greenville, South Carolina.
5.
Notice of Petitioner’s application was lawfully posted both at the proposed location
and in a newspaper of general circulation.
6.
The proposed location is described by Mrs. Morales as a family restaurant which
plans to operate from 11:00 a.m. to 2:00 a.m. each day. The sign on the front
of the building and the sign on the listing of the businesses within the
shopping center list Petitioner as “Lucky Shot Sports Bar & Grill.”
(Emphasis added.) The total area the proposed location encompasses is
approximately twenty four thousand (24,000) square feet. Approximately eleven
thousand one hundred eighty (11,180) square feet is devoted to billiard tables,
another large area is devoted to video games, and yet another area is devoted
to private “karaoke” rooms. The proposed location will have forty (40)
televisions throughout the establishment. I find that the proposed location is
actually a combination of a pool (billiard) hall, a video game arcade, and a
sports bar and grill containing private “karaoke” rooms, and not a family
restaurant as Mrs. Morales described.
The
proposed location will have seating for two hundred eighty (280) people and serve
traditional American cuisine including steaks, burgers, sandwiches, and hot
wings. Petitioner has already spent a substantial sum of money for renovations
to prepare the proposed location for business. However, the renovations were
stopped when it appeared that the issuance of the on-premises beer and wine
permit and minibottle license was in doubt.
7. Mrs.
Morales owns a seventy five percent (75%) interest in Lucky Shot Sports Grill,
LLC, and Paulo Oliveira has a twenty five percent (25%) interest and may assist
in management. M.Y. LLC, the company that owns the building where the proposed
location is situated, is owned by Mrs. Morales as well. Mrs. Morales also owns
a successful construction business in the area. She is heavily involved with
the South Carolina Korean Association and is also involved with the Methodist Church.
8. Respondent
George Hambrick lives on Stratford Road about one fourth (1/4) of a mile or
less from the proposed location in the fifth house from the corner. He is
concerned about patrons of the proposed location driving through the
community. Two children of the community have been killed by motorists.
9. The
proposed location was formerly a grocery store that had large crowds loitering
outside. Janice Lynn Brockman had to call the police several times because of
the activity. The police had to be called on one occasion so Janice Brockman
could safely pick her daughters up from work at the grocery store. Such a
loitering problem will be exacerbated by the sale of alcoholic beverages at the
proposed location.
10.
Mrs. Morales formerly held a beer and wine permit and minibottle license.
She obtained them with the intent of going into business with a friend from California, who for whatever reason could not obtain a beer and wine permit and minibottle
license on his own. The business for which Mrs. Morales obtained the permit and
license was located at 3344 Augusta Road in Greenville, about two miles from
the proposed location in issue in this proceeding. The friend backed out and
left the state before business was commenced. Mrs. Morales was left as a tenant
under a five year lease for space she could no longer utilize. She tried to get
the landlord to cancel the lease, but to no avail.
A
man named Robert “Tito” Santos approached Mrs. Morales about the use of the
premises at 3344 Augusta Road, and this led to the opening of Club Escalade.
There is no evidence of any sublease agreement. Mrs. Morales allegedly took no
part in the management of Club Escalade, however the lease, the beer and
wine permit, and the minibottle license remained in her name.
11. Club
Escalade, during the approximately two (2) years it operated, was a trouble
spot. From January of 2002 to 2004 there were approximately one hundred
nineteen (119) calls for service to the Greenville County Sheriff’s Office. The
brother of the manager of Club Escalade was arrested for marijuana and cocaine
possession while working behind the bar. A number of shootings occurred at
Club Escalade. Four shootings took place there at Easter of 2004.
The
Greenville Police Department had so many calls for service at Club Escalade
that the department quit keeping records on the calls, opting to keep records
on the arrests instead. Approximately eighty (80) arrests were made at Club
Escalade while it was open for business. Quite often eight to nine police cars
had to be sent to Club Escalade, and the Sheriff’s Department often had to be
called for backup. Shootings occurred outside the club in the immediate
presence of police officers.
Greenville
City Police, because of persistent problems at Club Escalade, met with Mr.
Santos and Mrs. Morales in 2003 and suggested changes in hours of operation
security and a dress code. Two weeks later, the same problems returned.
12. This
Court cannot find that Mrs. Morales is a fit person to receive a beer and wine
permit. Mrs. Morales’ prior involvement, or lack thereof, with Club Escalade
leads the Court to seriously question her ability to properly operate and
manage an establishment in compliance with the terms of a permit and license,
in conformance with the statutes and regulations governing the sale of
alcoholic beverages, and in comity with the surrounding community. Mrs. Morales
allowed chaos, disorder, and illegal activity to occur at a location for which
she had an on-premises beer and wine permit and minibottle license. Mrs. Morales
took a “hands off” approach to management, turning a blind eye to this activity
which included a number of shootings and blatant drug use. Due to Mrs. Morales’
prior history as a permit and license holder, this Court finds Morales is not a
fit person to receive a beer and wine permit. Mrs. Morales knew
or should have known of the problems at Club Escalade. Mrs. Morales did not act
in a responsible manner. She was not concerned with the proper operation of the
club and was interested only in protecting her own financial interest.
13. The
proposed location is not a proper and suitable one for the issuance of an on-premises
beer and wine permit or minibottle license. To issue the same would be a
detriment to the community.
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. 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).
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).
Suitability
of Location
4. S.C.
Code Ann. § 61-4-520 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. S.C.
Code Ann. § 61-6-1820 sets forth the basic criteria for the issuance of a
minibottle license. Although the suitability of the proposed location is not
listed in Section 61-6-1820 as a condition of licensing, such a consideration
is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n,
276 S.C. 138, 276 S.E.2d 308 (1981).
6. 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).
7. 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).
8. 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)).
9. 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). In
considering suitability of location, it is relevant to consider the previous
history of the location and to determine whether the
testimony in opposition of a permit is based on opinions and conclusions or is
supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d
801 (1973).
10. I
find that playing pool and billiards is a “business potential of evil.” It is
“fraught with some danger of the morals of those who play” and “there is more
danger of playing at such places leading to gambling and other vices.” Thomas
v. Foster, 108 S.C. 98, 98, 93 S.E. 397, 397 (1917); (citing State v.
Berlin, 21 S.C. 292, 53 Am.Rep. 677 (1884))
11. The
conclusion is inescapable that so large an establishment of the nature
described above and designed to serve so many people at one time in this
particular location is undesirable and will be a detriment to the community.
Based on the type of business, the close proximity to a church, a daycare, and
many residences; and the high potential for loitering and illegal conduct in
the parking area of the proposed location, I find and conclude as a matter of
law that the proposed location is unsuitable for an on-premises beer and wine
permit and unsuitable for a minibottle license.
Suitability
of Applicant
12. S.C.
Code Ann. § 61-4-540 provides that a beer and wine permit should not be issued
unless “the applicant is a fit person to sell beer and wine.” S.C. Code Ann. §
61-4-540 (Supp. 2004). I find as a matter of law that Mrs. Morales is not a fit
person to sell beer and wine based on her conduct while formerly holding a beer
and wine permit and minibottle license.
Conclusion
13. The
issuance or denial of a permit or license rests within the sound discretion of
this tribunal as the trier of fact. Inherent in the power to issue a permit or
license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177,
187 S.E.2d 191 (1972). Denial of the permit and license in the instant
case is warranted because the proposed location is unsuitable. Furthermore,
the evidence presented at the hearing supports the contention that Morales is
not a fit person to sell beer and wine in this State.
The
unsuitability of the proposed location is in itself sufficient evidence to deny
both the permit and the license. There is also sufficient evidence to deny the
permit based solely upon the unfitness of the applicant. When considered
together as a whole, these reasons provide irrefutable evidentiary support that
this beer and wine permit and minibottle license must be denied.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that Petitioner's application for an on-premises beer and
wine permit and minibottle license for the premises located at 6000 Augusta Road, Greenville, South Carolina, is DENIED.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
November 29, 2005 Administrative
Law Judge
Columbia, South Carolina
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