SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2001), § 61-4-520 (Supp. 2001), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2001) for a contested case hearing. Rodney Pitts seeks an on-premise beer and wine permit for Side Pockets, a location not yet fully constructed. ⁽¹⁾ On November 1, 2002, Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protests of concerned citizens, the Department would have found this location to be suitable. This motion was granted by my Order dated November 7, 2002. A hearing was held in this matter on December 18, 2002, at the offices of the Administrative Law Judge Division.

MOTION TO INTERVENE

Prior to the hearing into this matter, Protestant William R. Thomas filed a Motion for Leave to Intervene on December 9, 2002, requesting to participate fully in this proceeding as a party. Kenneth E. Allen, attorney for the Petitioner, objected to this motion on the grounds that the motion was not filed with the Division within twenty (20) days prior to the hearing. See ALJD Rule 20 (c). Furthermore, Mr. Thomas was apprised of his rights as a Protestant as well as the fact that he was required to file a motion to intervene at least twenty (20) days before the hearing in the Administrative Memorandum to Individuals Protesting a License or Permit which was served upon him along with the Notice of Hearing.

After careful consideration, I granted Mr. Thomas' motion. The right to intervene should be liberally permitted, particularly where judicial economy will be promoted by the declaration of the rights of all parties who may be affected. Berkeley Electric Coop., Inc., v. Town of Mt. Pleasant, 302 S.C. 186, 189, 394 S.E.2d 712, 714 (1990). Accordingly, the caption has been amended to reflect Mr. Thomas' admission as a Respondent in this matter.

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, the Respondents, and the Protestants, 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 given to the Petitioner, the Respondents, and the Protestants.

2. Side Pockets seeks an on-premise beer and wine permit for its location in Richland County at 720 Hazelwood Road, Columbia, South Carolina. Side Pockets is not located within the city limits of Columbia. The Petitioner testified that, if approved, the location would not operate as a bar but would rather house approximately eleven (11) pool tables where the Amateur Pool Association can hold tournaments and patrons can play pool, along with a game room for children. The location will also have approximately fifteen (15) tables for eating. The Petitioner plans to serve "short order" menu items, such as hot dogs and hamburgers. Construction on the location has not been fully completed and, therefore, the location will have to undergo a final inspection prior to opening.

3. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001) concerning the residency and age of the applicant are properly established. Furthermore, Mr. Pitts has not had a permit or license revoked within the last two (2) years and public notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The applicant has no criminal record and is of sufficient moral character to receive a beer and wine permit. Additionally, the location has not had any complaints from local law enforcement in the past as it has not been previously permitted.

5. The proposed location is not unreasonably close to any church, school or playground.

6. Sonny's is a non-profit private club located directly adjacent to the proposed location that has held a non-profit license and permit for about fifteen (15) years. Mr. Pitts is the owner of the building that houses Sonny's. However, Mr. Pitts does not operate that club but rather leases it to tenants who run the non-profit private club. Although some problems have occurred between Mr. Pitts and his current tenant, those have no bearing on this proceeding to determine suitability of location for Side Pockets. Mr. Pitts also testified that he is not renewing the lease for Sonny's which expires in February 2003.

7. Respondent Thomas and Protestant Representative Bales contend that this location is not suitable because of the high number of locations in the immediate area that serve and/or sell beer, wine and alcohol. Similar establishments exist next to the location and across the street from the location. Also, a convenience store is situated nearby that sells beer and wine off-premises. Representative Bales also testified that he has received calls at his residence regarding noise in the area.

On the other hand, the existence of similar establishments in the area is ordinarily not cause to deny a permit, especially where there is no evidence that the community is not being adversely impacted by the locations. This is even more prevalent given that Mr. Pitts is not renewing Sonny's lease effective February 2003. More importantly, Mr. Pitts also stipulated that he would not allow another location to be licensed or permitted at the Sonny's location. ⁽²⁾ Additionally, although it was mentioned that a park may be constructed in the future across from this location, the evidence did not establish when that park will actually be built or how its patrons would be adversely impacted by the proposed location. I therefore find consideration of a future park to be factually speculative.

As set forth above, the location has not been previously permitted. Approximately four (4) churches exist in the area, along with residences and schools several blocks away. Although the proximity to the churches and residences does not make the location unsuitable as the Petitioner intends to operate the location, Sonny's, which is directly adjacent to the proposed location, has had problems with excessive noise emanating from the location. Furthermore, I find that the expanding residential area creates the potential that a subsequent change in the nature of the location could adversely effect the neighborhood, therefore warranting restrictions on this permit. Thus, I find that the proposed location is suitable for an on-premise beer and wine permit as described in Finding of Fact No. 2 with the restrictions set forth below. Operation of the proposed location in any other manner than that approved within this Final Order and Decision certainly presents a potential change to the operation of the Petitioner's business .

Therefore, I find that the proposed location is suitable for an on-premise beer and wine permit pursuant to the restrictions set forth below. These restrictions are necessary to protect the current integrity of the community. However, the proposed location will not be suitable if the applicant does not comply with these restrictions or changes the nature of his business.

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. 2001) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2001) sets forth the requirements for the issuance of a beer and wine permit.

4. Although "proper location" is not statutorily defined, the Administrative Law Judge Division 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 the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct. App. 1984). 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. 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).

5. "A liquor license or permit may properly be 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).

6. 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). I conclude that this proposed location would not adversely impact this community.

7. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, 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 Judge Division, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions on permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application for an on-premise beer and wine permit of Rodney B. Pitts, d/b/a Side Pockets, be granted, with the following restrictions set forth below:

1. The Petitioner shall not allow excessive noise to emanate from Side Pockets. For the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision.

2. The Petitioner shall not allow another location to be licensed or permitted at Sonny's.

IT IS FURTHER ORDERED that a violation of the above restrictions be considered a violation against the permit and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department resume processing the Petitioner's application and issue an on-premise beer and wine permit to the Petitioner upon approved completion of the construction of the location and payment of the proper fees and costs.

AND IT IS SO ORDERED.

____________________________

Ralph King Anderson III

Administrative Law Judge

January 10, 2003

Columbia, South Carolina

1. At the hearing, Mr. Allen represented that his client was also seeking a sale and consumption (minibottle) license. However, the Petitioner's application indicates that this request was withdrawn on September 30, 2002. Furthermore, the Petitioner's letter in which he requests a contested case hearing (prior to hiring Mr. Allen) sets forth that Mr. Pitts is only seeking a beer and wine permit.

2. However, as Mr. Pitts owns both buildings, if he chose to expand Side Pockets into the building which currently houses Sonny's, he may be allowed to do so with proper approval from the appropriate permitting State agencies.