SC Administrative Law Court Decisions

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. § 61-2-260 (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004). Kevin Garrick, d/b/a Kevs Wings and Sports Bar (“Petitioner”), seeks renewal of an on-premise beer and wine permit for a restaurant located at 1920 Saint Matthews Road, Orangeburg, South Carolina.

Respondent South Carolina Department of Revenue (“Department”) denied Petitioner’s application for the permit because of timely filed protests. The Department would have issued the permit but for the Protestants’ timely protest.

A hearing in this matter was held on February 21, 2006, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Protestants Janet Ulmer and Donnie Ulmer.

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. 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 hearing was timely given to all parties and the Protestants.

3. The Petitioner, Kevin Garrick, d/b/a Kevs Wings and Sports Bar (“Petitioner”), seeks renewal of an on-premise beer and wine permit for the premises located at 1920 Saint Matthews Road, Orangeburg, South Carolina (“location”).

4. Kevin Garrick 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. Garrick is of good moral character and has not had an alcoholic permit or license revoked in the last two (2) years

5. Notice of the application was lawfully posted in a newspaper of general circulation.

6. Petitioner currently operates a restaurant at the location with an on-premises beer and wine permit. Petitioner has operated the restaurant with the permit since October, 2005. Petitioner’s hours of operation are 11:30 a.m. to 9:00 p.m. Tuesday through Thursday, and 11:30 a.m. to 10:00 p.m. Friday and Saturday. Petitioner is not open for business on Sunday and Monday. Petitioner’s shortened hours of operation are due in large part to his job with the United States Postal Service. Due to the hours Petitioner works with the USPS, he has no desire to have the location open for business late at night. Petitioner is personally responsible for cleaning the location, including picking up trash in the parking lot and picking up trash in the area around the location.

7. The location is on the corner of St. Matthews Road and Brickle Street. Brickle Street is a dead end road that is approximately 700 to 800 feet long, containing a mix of businesses and residences. Donnie and Janet Ulmer are concerned about parking issues, trash problems, and potential noise problems in the area. The Ulmers own the building adjacent to the location. The Ulmers’ current tenants operate a hair salon in their building. The Ulmers’ tenants are some of the Petitioner’s best customers, and they are not Protestants in this case. Most of the Protestants’ concerns can be directly linked to a gentlemen’s club and a pool hall that operate on Brickle Street. None of the problems mentioned resulted from activity occurring at Petitioner’s location.

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 he meets all of the statutory requirements for holding a beer and wine permit at the location. Although cognizant of the Protestants’ 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 Protestants’ timely protest.

11.       In the case at hand, I find that the proposed location is suitable for Petitioner to operate a restaurant with an on-premises beer and wine permit. I find that Petitioner’s restaurant operations will not be detrimental to the welfare of the surrounding community. While I am sympathetic with the Protestants, most of their concerns can be directly linked to a gentlemen’s club and a pool hall that operate on Brickle Street. None of the problems mentioned resulted from activity occurring at Petitioner’s 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.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that the renewal application for an on-premises beer and wine permit by Kevin Garrick, d/b/a Kevs Wings and Sports Bar, at 1920 Saint Matthews Road, Orangeburg, South Carolina is GRANTED upon Kevin Garrick 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 the location (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.

2. No music, including live music, or any activities sponsored, authorized or acquiesced to by Petitioner, is permitted on the outside of the location.

3. Petitioner shall not be open for business at the location past midnight on any night of the week.

4. Petitioner shall keep the location and the area surrounding the location reasonably free of any litter resulting from patrons of Petitioner’s business.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the on-premises beer and wine permit and, after notice to the Department and a hearing, may result in a fine, suspension, or revocation of the on-premises beer and wine permit.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

February 28, 2006

Columbia, South Carolina