ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (ALC or Court) pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (2005), 61-2-260 (Supp. 2005), and 61-4-525
(Supp. 2005) for a contested case hearing. Lynwood Gameroom, LLC (Petitioner),
seeks an on-premises beer and wine permit for its location at 3182 Lynwood
Drive, Lancaster, South Carolina (location). Tammy Brown, Erlinda Broughton,
Betty Bowers, and J. Mendle Baker (Protestants) filed protests to the
application with the South Carolina Department of Revenue (Department) and
appeared at the hearing. Because of the protests, the hearing was required.
A hearing in this matter was held before me on February
28, 2006 at the ALC in Columbia, South Carolina. Both parties and the
Protestants appeared at the hearing. Evidence was introduced and testimony was
taken. After carefully weighing all the evidence, I find and conclude that Petitioner’s
request for an on-premises beer and wine permit is denied.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and further 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 hearing was timely given to all the
parties and the Protestants.
2. John Baker
(Applicant), on behalf of Lynwood Gameroom, LLC, seeks an on-premises beer and
wine permit for the location at 3182 Lynwood Drive, Lancaster, South Carolina, which
is located outside the city limits in Lancaster County. Mr. Baker is the sole
owner of Lynwood Gameroom, LLC, a limited liability company currently in good
standing with the Secretary of State.
3. Mr.
Baker is over the age of twenty-one (21). 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. Baker is
of good moral character and has not had a permit or license revoked in the last
two (2) years.
4. Notice
of the application was lawfully posted both at the location and in a newspaper
of general circulation.
5. The building at
the proposed location is approximately 30’ x 20’ and has two large windows in
the front. Applicant intends to have a small bar area, one pool table, a few
tables and chairs, a dartboard and a television inside the building. Music will
be played inside the location over a stereo or jukebox.
6. The proposed hours
of operation are from 3:00 p.m. until 11:00 p.m. Monday through Thursday and
from 3:00 p.m. until 12:00 a.m. on Friday and Saturday.
7. There is parking
at the location for approximately ten (10) cars.
8. Mr. Baker will be
the sole employee of the location.
9. Mr. Baker
currently works at Dillard’s in Pineville, North Carolina. His normal working
hours there are from 8:00 a.m. to 6:00 p.m., four days a week. However, his
schedule varies from time to time. Mr. Baker plans on adjusting his schedule at
Dillard’s so that he can be at the location during its hours of operation. He
also has some experience working at a location where alcohol was served.
10. The location
fronts on Lynwood Drive, a heavily traveled two-lane road, and is situated
between two narrow bridges. The entrance to the location is located near one
of the narrow bridges. There is a blind spot at that area due to trees and the
roadway. No passing of vehicles is allowed on the road in the vicinity of the
location.
11. There are several
residences in close proximity to the location. Mr. Baker’s great aunt lives
approximately 100 yards from the location, and her yard adjoins it. There are
also several residences located directly across the road from the location. Foxbank
subdivision is approximately one-tenth of a mile from the location and there is
an elementary school approximately one mile away. The Sheriff’s Office is
located more than five miles from the location in the City of Lancaster.
12. Years ago, a
convenience store operated in this location and a landfill was also operated
next to it.
13. Protestants Tammy
Brown, Erlinda Broughton, Betty Bowers, and J. Mendle Baker appeared and
testified at the hearing, each expressing concerns about safety in the area.
14. Protestant J.
Mendle Baker is the pastor at New Hope Baptist Church which is located at 3731
Lynwood Drive, approximately 1.3 miles from the location. His primary concern
is that intoxicated drivers will leave the location and travel on the dangerous
and heavily traveled stretch of road in front of the location. The narrowness
of the road and bridges, along with the many residences nearby in which
children live and play further heighten his concern. Protestants Tammy Brown,
Erlinda Broughton and Betty Bowers are also members of New Hope Baptist Church.
They expressed the same concerns for safety in the area.
15. I find that the proposed
location is not suitable for the issuance of an on-premises beer and wine
permit.
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. 2005) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
3. S.C.
Code Ann. § 61-4-520 (Supp. 2005) sets forth the requirements for the issuance
of a beer and wine permit.
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, 417 S.E.2d 586 (1992); see
also Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (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, 471 S.E.2d 154 (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 permit, is likewise
authorized to revoke or suspend the permit for cause. See Feldman v.
S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9. I
find and conclude that the location is not suitable for an on-premises beer and
wine permit because it would have an adverse impact on the surrounding
community. The location is situated on a heavily traveled roadway between two
narrow bridges. Furthermore, the entrance to the location is located close to
one of these bridges and there is a blind spot in front. An increase in
traffic at this location, together with individuals leaving in an intoxicated
condition, would pose additional traffic hazards in the area. There are also
numerous residences in close proximity to the location where children live and
play, one being only approximately 100 yards from the location. I am also
concerned that Mr. Baker intends to be the sole employee at the location. As the
sole employee, it will be difficult for him to work at the location and closely
monitor both the inside and outside at the same time. Furthermore, if a
problem occurred outside, Mr. Baker would have to leave the inside of the
location unattended to attempt to resolve the problem. Accordingly, I find
that the on-premises beer and wine permit at this location must be denied.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the application for an on-premises beer and wine
permit by Lynwood Gameroom, LLC, 3182 Lynwood Drive, Lancaster, South Carolina is
DENIED.
AND
IT IS SO ORDERED.
__________________________________
Marvin F.
Kittrell
March 9, 2006 Chief
Administrative Law Judge
Columbia, South Carolina
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