ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2005),
S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§ 1-23-310 et
seq. (2005) for a contested case hearing. Petitioner Veronica Jenkins
seeks an on-premises beer and wine permit and a restaurant liquor-by-the-drink
license for her restaurant and sports bar, Spooney’s Sports Bar, located at
6013 Augusta Road in Greenville, South Carolina. Respondent South Carolina
Department of Revenue (Department) denied Petitioner’s application for the
permit and license solely because of a protest filed by R.H. Patterson, Sr., a
resident of Greenville County, regarding the suitability of the proposed
location for Petitioner’s restaurant. After timely notice to the parties and
the protestant, a hearing of this case was held on June 7, 2006, at the South
Carolina Administrative Law Court in Columbia, South Carolina. Based upon the
evidence presented regarding the suitability of the location and upon the
applicable law, I find that Petitioner’s application for an on-premises beer
and wine permit and a restaurant liquor-by-the-drink license should be granted.
FINDINGS
OF FACT
Having
carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of
the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On
December 30, 2005, Petitioner Veronica Jenkins submitted an application to the
Department for an on-premises beer and wine permit and a license to sell liquor
by the drink for her restaurant and sports bar, Spooney’s Sports Bar, located
at 6013 August Road in Greenville, South Carolina. This application and the
Department’s file on the application are hereby incorporated into the record by
reference.
2. Notice
of Petitioner’s application was published once a week for three consecutive
weeks in The Greenville News, a newspaper published and circulated in
Greenville, South Carolina, and proper notice of the application was posted at
the proposed location for fifteen days.
3. Petitioner
is over twenty-one years of age, has no delinquent state taxes, and is a legal
resident of the United States and the State of South Carolina. Further,
Petitioner resides and maintains her principal place of abode in South
Carolina, and did so for at least thirty days prior to making her application.
4. While
Petitioner has a 1992 misdemeanor conviction for writing a fraudulent check,
she has no other criminal record and there is nothing in the record to suggest
that she is not a person of good moral character or is otherwise unsuitable to
hold a beer and wine permit or liquor license. Petitioner has not previously
held a permit to sell beer and wine or a license to sell alcoholic liquors, and
the record does not reveal that Petitioner has ever committed any violations of
South Carolina’s alcoholic beverage laws.
5. Petitioner’s
restaurant and sports bar is situated on Augusta Road, a major thoroughfare in
the Greenville area, near its intersection with White Horse Road. The area
surrounding the restaurant is a mixed area of both residential and commercial
development, with a convenience store and shopping plaza in the immediate
vicinity of the proposed location. There are no churches, schools, or
playgrounds within five hundred feet of Petitioner’s restaurant or in the
broader vicinity of the proposed location.
6. The
proposed location has been operated as a sports bar and nightclub in the past.
Petitioner has recently renovated the location and, as noted above, intends to
operate the location as a restaurant and sports bar. Petitioner has a Class A
restaurant license from the South Carolina Department of Health and
Environmental Control for the establishment, and the location is fully equipped
to operate as a restaurant, with adequate seating for patrons and a full
kitchen, including a stove and refrigerator.
7. The
protestant, R.H. Patterson, Sr., opposed Petitioner’s application for an
on-premises beer and wine permit and a restaurant liquor-by-the-drink license primarily
because of his belief that the economic costs and social harms caused by the
consumption of alcoholic beverages outweigh any economic or social benefits
derived from the sale and consumption of alcohol. In particular, Mr. Patterson
was concerned with the addition of another business licensed to sell alcoholic
beverages in the areas along Augusta Road and White Horse Road, which he
considers to be oversaturated with retail outlets for alcoholic beverages.
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. 2005),
S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§ 1-23-310 et
seq. (2005).
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. S.C. Code Ann. §§ 61-4-500 through 61-4-620 (Supp. 2005)
govern applications for retail beer and wine permits and establish the criteria
for determining eligibility for those permits. The basic requirements for
licenses to sell liquor by the drink as a restaurant are found in S.C. Code
Ann. §§ 61-6-1610 and 61-6-1820 (Supp. 2005) as well as in 23 S.C. Code Ann.
Regs. 7-401.3 (Supp. 2005). Further, S.C. Code Ann. § 61-2-100 (Supp. 2005)
lays out the general requirements that all applicants for permits and licenses
to sell alcoholic beverages must satisfy.
4. S.C. Code Ann. § 61-4-520 (Supp. 2005) 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. See id. § 61-4-520(6)-(7). S.C. Code Ann. § 61-6-1820 (Supp. 2005) sets
forth the basic criteria for the issuance of a license to sell liquor by the
drink. Although the suitability of the proposed location is not listed in
Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C.
138, 276 S.E.2d 308 (1981).
5. Although “proper location” is not statutorily defined, broad
discretion is vested in the trier of fact to determine the fitness and
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. However, without sufficient evidence of an adverse impact on
the community, a permit application must not be denied if the statutory
criteria are satisfied. The fact that the issuance of a permit or license is
protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. Further, the denial of a license or permit to an applicant on
the ground of unsuitability of location is without evidentiary support when
relevant testimony of those opposing the requested license or permit consists
entirely of opinions, generalities, and conclusions not supported by the
facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith
v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
9. In
making a decision in this matter, this Court is constrained by the record
before it and the applicable statutory and case law. Here, Petitioner meets
all of the statutory criteria enacted by the South Carolina General Assembly
for the issuance of a beer and wine permit and a license to sell liquor by the
drink, and there has not been a sufficient evidentiary showing that the
proposed location is unsuitable for Petitioner’s restaurant and sports bar or
that the issuance of the permit and license in question would create problems
in or have an adverse impact upon the surrounding community. Petitioner’s
establishment is located along a major thoroughfare in an area with other
businesses, at a location that has been previously licensed for the sale of
alcoholic beverages. Accordingly, there is no evidence in the record to
suggest that, given the nature of Petitioner’s proposed business, the sale of
beer and wine and liquor drinks at Petitioner’s restaurant and sports bar will
have an adverse impact upon the surrounding community or will otherwise be
out-of-keeping with the character of that community. Further, the protestant’s
opposition to Petitioner’s application was primarily focused upon general
concerns with the proliferation of the retail of alcoholic beverages in
Greenville County and the entire state of South Carolina, and not on specific
objections to the suitability of the location in question for the sale of
alcoholic beverages. Therefore, while this Court is respectful of the protestant’s
opposition to the requested permit and license, the general arguments proffered
by the protestant do not constitute a sufficient basis upon which to deny
Petitioner’s application.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that the Department shall GRANT Petitioner’s
application for an on-premises beer and wine permit and a license to sell
liquor by the drink for the premises located at 6013 Augusta Road in
Greenville, South Carolina.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205
Pendleton Street, Suite 224
Columbia,
South Carolina 29201-3731
June 7, 2006
Columbia, South Carolina |
