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. §§ 61-2-90 & 61-2-260 (Supp. 2005) and
S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2005) for a contested
case hearing. Petitioner seeks a nonprofit private club minibottle license and
an on-premise beer and wine permit. Respondent Department of Revenue
(Department) made a Motion to be Excused stating that but for the protest it
received this application would have been granted. Finding “good cause,” the
Department’s motion was granted by my Order dated February 10, 2005. A hearing
was held on March 16, 2006, at the offices of the Administrative Law Court in Columbia, South Carolina.
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
Petitioner and the Protestant, 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 given to the Petitioner
and the Protestant.
2. Petitioner
seeks a nonprofit private club minibottle sale and consumption license and an
on-premise beer and wine permit for South Side Pub located at 6320 Augusta Highway, Greenville, South Carolina. South Side Pub is incorporated under the
laws of South Carolina as a nonprofit corporation. Tammy Moreland is the director
member of South Side Pub as set forth in the club's by-laws. Ms. Moreland is a
legal resident of the state of South Carolina.
3. There
are no churches, schools or playgrounds within five hundred (500) feet or in
close proximity of the proposed location.
4. The
qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2005)
concerning the residency and age of South Side Pub’s principal, Tammy Moreland,
are properly established. Furthermore, Ms. Moreland has not had a permit or
license revoked within the last two years and notice of the application was
lawfully posted both at the location and in a newspaper of general circulation.
5. Petitioner’s
principal, Ms. Moreland, does not have a criminal record and is of sufficient
moral character to receive a nonprofit private club minibottle license and on-premise
beer and wine permit.
6. R.H.
Patterson is the sole Protestant against the issuance of this permit and
license. Mr. Patterson’s main concerns regarding this restaurant are that:
a. The patrons
of the location could be endangered by the proximity of railroad tracks running
behind the proposed location, and
b.
The location is a high traffic area on Augusta Highway, and
c. There
is not sufficient parking for the patrons of the location, and
d. Allowing the
sale of beer or wine at the proposed location or any other location in the Greenville area increases the rate of crime and is a burden upon law enforcement.
7. If
permitted and licensed, South Side Pub will be a private club primarily
catering to adults thirty years of age and older. They will open at 11:30 a.m.
Monday through Friday to serve lunch and will serve a full menu including
salads, sandwiches, hamburgers and pizza. On the weekends, they will open at 3
p.m.
The
restaurant will be situated on Augusta Road, otherwise known as Highway 25.
There are several businesses in the area including an industrial park and a
commercial business park. A restaurant with an on-premise beer and wine permit
was previously operated at the location. However, the building was destroyed
by a fire. The current building was constructed after the fire and sits in the
same location. Ms. Moreland has substantially renovated the structure and it
is currently operative as a restaurant. Furthermore, if the location is
permitted and licensed, Ms. Moreland intends to have a fence placed between the
location and the railroad tracks.
Mr. Patterson’s arguments
appear to be based on a sincere concern
for the community. However, in order to deny this nonprofit
private club minibottle license and on-premise beer and wine permit, direct evidence of an adverse impact on the community is necessary. Though the evidence raises “potential” concerns that this nonprofit
business “may” change the integrity of the vicinity, the evidence did not
establish that the granting of this nonprofit license and permit will have an
overall adverse impact on the surrounding area. Additionally,
the evidence did not establish that granting the permit and license would
exacerbate crime in the area of the proposed location. Therefore, I find that Petitioner's proposed location is suitable
for a nonprofit private club minibottle license and on-premise 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 (Supp. 2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.
S.C. Code Ann. § 61-2-260 (Supp. 2005) also grants the Administrative Law Court
the responsibilities to determine contested matters governing alcoholic
beverages, beer and wine.
2. S.C. Code
Ann. § 61-4-520 (Supp. 2005) sets forth the requirements for the issuance of a
beer and wine permit. Section 61-4-520 (5) provides that location of the
proposed place of business must be a proper one. Furthermore, 61-4-520 (6) provides
that in making that determination the Department may consider proximity of the
location to “residences, schools, playgrounds, and churches.”
3. S.C.
Code Ann. § 61-6-1820 (1) (Supp. 2005) sets forth that the Department may issue
a license allowing the possession or consumption of alcoholic liquors upon the
premises if an “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.” Petitioner
seeks a nonprofit private club minibottle license. S.C. Code Ann. § 61-6-20(6)
(Supp. 2005) defines a “nonprofit organization” as “an organization not open to
the general public, but with a limited membership and established for social,
benevolent, patriotic, recreational, or fraternal purposes.” Only the members
and guests of the nonprofit organization may consume alcoholic beverages upon
the premises. Id. Furthermore, a nonprofit organization licensed to
sell alcohol must comply with the organizational and operational requisites of
23 S.C. Code Ann. Regs. 7-401.4(D) (Supp. 2005).
In
addition, a license for the sale and consumption of alcoholic beverages must
not be granted unless an individual applicant is of good moral character or, if
the applicant is a corporation or association, it “has a reputation for peace
and good order in its community, and its principals are of good moral
character.” S.C. Code Ann. § 61-6-1820 (2) (Supp. 2005). Section 61-6-1820 (3)
further provides that a sale and consumption license shall not be granted
unless the proposed location meets the minimum distance requirements from
churches, schools, or playgrounds as forth in S.C. Code Ann. § 61-6-120 (Supp.
2005). Section 61-6-120 (A) requires that a location outside of a municipality
licensed to sell liquor must be a minimum of five hundred (500) feet from any
church, school, or playground. The distance is determined by following “the
shortest route of an ordinary pedestrian or vehicular travel along the public
thoroughfare from the nearest point of the grounds in use as part of such
church, school or playground. . . .”
4. The
Protestant argued that the location is in an unincorporated town or community
that does not have proper police protection and that there are too many
existing locations in the area. S.C. Code Ann. § 61-6-160 (Supp. 2005)
provides that “the department may not license a retail dealer in any locality
unless the department determines that the locality is under proper police
protection.” Additionally, S.C. Code Ann. § 61-6-170 (Supp. 2005) provides
that the Department may limit the further issuance of retail dealer licenses if
it determines that the citizens who desire to purchase alcoholic liquors therein
are more than adequately served by the existing licenses. However, these
provisions apply to “retail dealers.” See S.C. Code Ann. § 61-6-20 (Supp.
2005). The applicant, in this case, is not seeking a license under Article 3
of Chapter 6 but, rather, under Article 5 of Chapter 6. Therefore, Section
61-6-160 and 61-6-170 are not applicable to this case.
5. 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. See Fast Stops, Inc. v. Ingram,
276 S.C. 593, 595, 281 S.E.2d 118, 120 (1981). The determination of
suitability of location is not necessarily a function solely of geography. Kearney v. Allen, 287 S.C. 324, 326-327, 338 S.E.2d 335, 337 (1985). 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. Id. at 327, 338 S.E.2d at 337. In
determining the suitability of a location, it is proper for this Court, as the
trier of fact, to consider any evidence that demonstrates the adverse effect
the proposed location will have on the community. See Palmer v. S.C.
Alcohol Beverage Control Comm'n, 282 S.C. 246, 249, 317 S.E.2d 476, 478
(Ct. App. 1984). It is also relevant to consider the previous history of the
location. See 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. See Smith v. Pratt, supra; Taylor
v. Lewis, supra.
“A
liquor license or permit may also be properly refused on the ground that the
location of the establishment would adversely affect the public interest, that
the nature of the neighborhood and of the premises is such that the
establishment would be detrimental to the welfare . . . of the inhabitants, or
that the manner of conducting the establishment would not be conducive to the
general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121
at 501 (1981). Nevertheless, without sufficient evidence of an adverse impact
on the community, the application must not be denied if the statutory criteria
are satisfied. Furthermore, 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).
6. Petitioner meets the above statutory
requirements for holding a nonprofit private club minibottle license
and on-premise beer and wine permit. Furthermore, no evidence or argument was
presented that Petitioner is not in compliance with the requirements of
Regulation 7-401.4 (D).
ORDER
Based
upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the nonprofit private club minibottle license and on-premise beer
and wine permit
for South Side Pub, Inc. be granted upon the payment of the proper fees and
costs.
AND IT IS SO
ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
March 17, 2006
Columbia, South Carolina |
