ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (Court) pursuant to S.C. Code
Ann. §61-2-90 (Supp. 2005) and S. C. Code Ann. §§1-23-310 et seq. (1986
and Supp. 2005) for a contested case hearing. The Petitioner Infield Sports
Bar & Grill is a nonprofit organization. It seeks an on-premise beer and
wine permit and nonprofit private liquor by the drink license. The Department
of Revenue denied the application based on the receipt of a valid protest. A
hearing was held on this case on May 1, 2006, at the offices of the Court in
Columbia, South Carolina. Having carefully considered the evidence and
testimony, I find and order that the requested license and permit be issued.
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 hearing was given to the
Petitioner, Protestant and Respondent.
2. The
proposed location for the Infield Sports Bar & Grill is 719 North Main
Street, New Ellenton, South Carolina. The Petitioner seeks an on-premise beer
and wine permit and nonprofit private club liquor by the drink license on
behalf of a nonprofit organization. This location has been licensed to sell
alcohol in the past. The principals plan to retain the hours of operation of
the prior owners; they have agreed not to open prior to 1:00 PM on Sunday
afternoons. The capacity of the club is 70 people, with parking available for
approximately 50 cars. The parking area is well lit with several exterior
lights.
3. The
qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp.
2005) concerning the residency and age of the Petitioner are properly
established. Furthermore, the Petitioner has not had a permit or license
revoked within the last two years. Notice of the application was also lawfully
posted both at the location and in a newspaper of general circulation. Bishop
William Frazier filed a timely protest objecting to the location.
4. The
proposed location is approximately 3/10ths of a mile from the Lord
of Our Righteousness church following a standard vehicular traffic pattern down
Old Whiskey Road. There are other alcohol licensed locations nearby including
a grocery store and a retail liquor store.
5. The
Protestant’s objection to the Petitioner’s permit and license is based upon the
location of the Infield Sports Bar & Grill. The Protestant asserts that the
proposed location may cause problems, including noise, traffic, driving under
the influence, alcohol consumption, fights, and disorderly conduct. He is
concerned about the temptations to the youth which the church serves. The
church is purchasing some land between the church building and this proposed
location. The church plans to use this property as a ball field for its youth
program. There is, however, another business between these locations. Additionally,
the Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving
the sale of beer, wine or alcohol, did not object to the granting of a permit
or license in this case. The applicant is fit and the proposed location is
suitable for an on-premise beer and wine permit and nonprofit private club
liquor by the drink license.
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.
Additionally, S.C. Code Ann. § 61-2-260 (Supp. 2005) specifically 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 an on-premise beer and wine permit. Specifically, Section 61‑4‑520(1)
provides in part that to receive a beer and wine permit the Petitioner must
show that "[t]he applicant, any partner or co-shareholder of the
applicant, and each agent, employee, and servant of the applicant to be
employed on the licensed premises are of good moral character."
3.
In addition to the requirements set forth above, a license for the sale
and consumption of alcoholic beverages must not be granted unless the
provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2005) are met. That section
requires that the principals and applicants must not only be of good moral
character, but they must also have a reputation for peace and good order.
Additionally, Section 61-6-1820 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 set forth in S.C. Code
Ann. §61-6-120 (Supp. 2005).
4. S.C.
Code Ann. 61-6-20(6) (Supp. 2005) establishes that a nonprofit organization is
not open to the general public and only the members and guests of the club may
consume alcoholic beverages upon the premises.
5. Although
“proper location” is not statutorily defined, broad discretion is vested in the
trier of fact in determining the fitness or suitability of a particular
location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118
(1981). As the trier of fact, the Administrative Law is authorized to
determine the fitness or suitability of the Petitioner and the proposed
business location for a license or permit using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705
(Ct. App. 1984). The determination of suitability of a location is not
necessarily a function solely of geography. It involves an infinite variety of
considerations related to the nature and operations 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).
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 or license 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).
7. It
is relevant to determine whether the testimony in opposition to the granting of
a permit is based on opinions, generalities and conclusions, or whether the
case is supported by facts. Byers v. South Carolina ABC Commission, 281
S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984). There were no specific concrete
objections voiced by the Protestant. The objections were speculative and
address general concerns.
Therefore,
the Petitioner meets the statutory requirements for holding a beer and wine
permit and nonprofit private club liquor by the drink license as a nonprofit
organization at the proposed location.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Infield Sports Bar & Grill, for an on-premise beer
and wine permit and nonprofit private club liquor by the drink license as a
nonprofit organization, be issued upon payment of the required fees and costs
by the Petitioner.
AND IT IS SO
ORDERED.
___________________________________
CAROLYN C.
MATTHEWS
Administrative
Law Judge
May 2, 2006
Columbia, South Carolina |
