SC Administrative Law Court Decisions

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), § 61-4-520 (Supp. 2005), and § 61-4-525 (Supp. 2005) for a contested case hearing. Foster Godwin, d/b/a Gossip of NE (Petitioner), seeks an on-premises beer and wine permit for his location at 10961 Two Notch Road, Elgin, South Carolina (location). Mary Brassel, Tammy H. Chandler, Catherine Hutchison, Valerie Hutchinson, David Locklear, and Cecil and Vickie Redmon (Protestants) each filed a protest to the application with the South Carolina Department of Revenue (Department) and appeared at the hearing.[1] Because of the protests, the hearing was required.

A hearing in this matter was held before me on May 22, 2006 at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and the Protestants appeared at the hearing. Evidence was then introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for an on-premises beer and wine permit should be granted with restrictions.

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 timely given to all the parties and the Protestants.

2. Foster Godwin seeks an on-premises beer and wine permit for his location at 10961 Two Notch Road, Elgin, South Carolina, which is located outside the city limits. He is the sole owner of Gossip of NE.

3. Mr. Godwin is over the age of twenty-one. He is a legal resident of the State of South Carolina and has maintained his principal place of abode in the State of South Carolina for at least thirty (30) days prior to making this application. He 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 location will operate as a pool hall and bar. The proposed hours of operation are from 10:00 a.m. to 12:00 a.m., (midnight) Monday through Thursday, 10:00 a.m. to 12:00 a.m. or 2:00 a.m., depending on the crowd on Friday, and from 10:00 a.m. to 12:00 a.m. on Saturday. It will be closed on Sunday. Currently, there are no plans to serve food at the location. However, food items such as hot dogs, cold sandwiches, chips, and pizza may be served in the future.

6. There will be no karaoke at the location and no live bands will perform there. The location will have a jukebox and radio inside, but no music will be played outside of the location. No drinking or loitering will be allowed on the outside of the building either.

7. The location is in a rural area at the corner of Two Notch Road and Kelly Mill Road. There are no churches, schools, or playgrounds in the vicinity of the location. However, there are numerous residences in close proximity. Two dilapidated mobile homes also sit behind the building at the location.

8. The proposed location is made of cinder blocks. A game room is located to one side of the building and has covered windows which prevents people from seeing inside the location from the outside. There is a deck located on the side of the building which faces the parking area and Kelly Mill Road. However, this deck will not be utilized except for ingress and egress into the building. Instead, part of the deck will be removed in order to create a side entrance to the location. The entrance to the building facing Two Notch Road will no longer be utilized by patrons.

9. Mr. Godwin has made significant improvements to the building, including installing vinyl siding on the front exterior, installing new doors, sealing the building to cut down on sound, and painting the walls. He will also place shrubbery in front of the building.

10. All parking will be on the side of the building closest to Kelly Mill Road. A fence will be constructed along the right side of the building which will define the parking area.[2] Also, the area behind the building will be cordoned off so that no parking will occur in that area. Gravel will be put down in the parking area. No parking will be allowed in front of or behind the building. Parking will only be allowed in the area designated on Petitioner’s Ex. 3, which is attached hereto and made a part of this Order. Motorcycles will also be required to park in the designated parking area along with all other vehicles. No four-wheelers will be allowed at the location.

11. The parking area will be patrolled frequently by an employee of the location during its hours of operation and by a uniformed security guard during on Friday and Saturday evenings.

12. A street light at the location lights up the parking area. There is also a light in Mr. Redmon’s yard that lights up part of the area behind the location.

13. The location has a dumpster on site. All trash will be removed from the grounds of the location on a daily basis.

14. A wooden fence runs between Mr. Redmon’s property and the location. There is also a fence which runs from the left side of the building to Mr. Redmon’s fence.

15. This location was licensed for the sale of alcoholic beverages when it was under previous ownership. It was previously operated under the name “Tina’s Place.” Neither Mr. Godwin, his wife, nor Mr. Marr have been involved with any business that previously operated at this location. Furthermore, no person involved in the operation of any previous business at this location will work at the new location. “Tina’s Place” closed in October 2005.

16. Petitioner expects to draw a different clientele than that which frequented the location under prior ownership. Petitioner anticipates that an older crowd, including many retirees in the community, will be patrons at the location. At the most, Petitioner anticipates having no more than 50 to 75 people at the location at any time.

17. Mr. Godwin previously operated another business on Two Notch Road for over 10 years which was licensed to sell beer and wine. There were no reported incidents to local police or ABC violations under his ownership. Mr. Godwin also operated a bar and grill in Clover, South Carolina, which he recently sold. This location was also licensed for the sale of beer, wine and alcoholic beverages.

18. William Lloyd “Buddy” Marr will manage the location and work as a bartender. Mr. Marr is over the age of twenty-one (21) and is of good moral character. He has experience in restaurant management and helped Mr. Godwin remodel the location. He has also been bartending for approximately 5 years at other licensed locations without incident. Mr. Marr lives 2 miles from the location and intends to work at the location during at least half of its weekly hours of operation. However, he anticipates that he will be working even more frequently during its first few months of operation. Mr. Marr has no ownership interest in Gossip of NE.

19. Petitioner has been approached by a motorcycle group who would like to use the location as a meeting club. Although it is not the crowd he is targeting at the location, Petitioner intends to allow the group to meet at the location and bring in their own beer and wine if the permit is denied.

20. Protestants Cecil and Vickie Redmon live next door to the proposed location; their residence is approximately 69 feet away. They expressed concerns for safety due to the past history of the location when it was under different ownership. Mr. and Mrs. Redmon have had numerous problems with vandalism. Their security light, which also lights part of the proposed location’s area, has been shot out twice. In addition, both the front and rear windshield of their Recreational Vehicle have been shot out. Mr. Redmon was standing next to it when one of the windows was shot out.

The Redmon’s have also had problems with people urinating and parking in their yard and problems with litter from the location, including shattered beer bottles and cans being thrown into their yard. Individuals have been stabbed in their yard and they have also had people run into their yard after being shot. Furthermore, they have witnessed people drinking on the outside of the location. Noise emanating from the location, including profanity, has awoken them at night on numerous occasions. Mr. and Mrs. Redmon have spent a substantial amount of money putting up fences and security lighting to help with problems emanating from the past location.

21. Protestant David Locklear lives off of Kelly Mill Road approximately 2/10 of a mile from the location. His primary concern is also safety. He must travel past the location to and from his home. On one occasion, while traveling to his home, his truck was hit with spray from a shotgun while a turkey shoot was being held at the location. He has also experienced patrons backing their vehicles out in front of him as they exit the location. His greatest concern, however, is for the safety of children who get on and off of school buses in the area, including one location directly in front of Mr. Redmon’s house. Mr. Locklear has two young children and is concerned for his family’s safety.

22. Protestant Mary Brasell lives across the street from the Redmon’s, approximately 400 feet from the location. She has also witnessed intoxicated individuals leaving the bar and walking down the highway. She is concerned for her safety and that of the people in the community.

23. Protestant Tammy Chandler, General Manager of Greenlawn Memorial Park Northeast (a cemetery), which is located nearby also expressed her objections to the permit, as did Protestant Catherine Hutchison who lives on the other side of Kelly Mill Road across from the cemetery. Ms. Hutchison and her family has experienced problems with noise, gunshots, and revving engines coming from the location late at night. Protestant Valerie Hutchinson, who represents District 9 on County Council, also appeared and expressed concerns for the safety of the citizens in the area.

24. The proposed location is suitable for an on-premises beer and wine permit with the restrictions set forth below.

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, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (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, 10, 471 S.E.2d 154, 157 (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. S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2005) authorizing the imposition of restrictions on permits, provides:

Any written stipulation and/or agreement which is voluntarily entered into by an applicant for a permit or license between the applicant and the Department, if accepted by the Department, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the permit or license and shall have the same effect as any and all laws and any and all other regulations pertaining to the permit or license.

Knowing violation of the terms of the stipulation or agreement shall constitute sufficient grounds to revoke said license.

10. Furthermore, the Department may seek revocation or suspension of permits for the sale of beer and wine “on its own initiative or on complaint signed and sworn to by two or more freeholders resident for the preceding six months in the community in which the licensed premises are located or by a local peace officer, all of whom are charged with the duty of reporting immediately to the department a violation of the provisions of Section 61‑4‑580…” S.C. Code Ann. § 61-4-590 (Supp. 2005).

11. With the restrictions set forth below, Petitioner meets the statutory requirements for holding an on-premises beer and wine permit at the location. Petitioner has taken considerable measures to improve the location and does not intend to operate it as it has been in the past. Petitioner and his Manager, Mr. Marr, have also operated other licensed locations without incident. Furthermore, no person involved in the operation of the previous establishment at this location will have any ownership interest or involvement in the new establishment. However, I am concerned about the rights of the individuals who live nearby. They have the right to live in their homes in a safe and quiet environment. Therefore, as a condition for keeping the permit, Petitioner must prevent any actions or activities at the location which would or could deny his neighbors the right to live comfortably, securely, and without objectionable noise in the privacy of their homes. Numerous restrictions must be placed on the permit to ensure that Protestants and citizens do not experience the same problems they have in the past. The concerns expressed by the Protestants are certainly reasonable based upon the past history of the location. Those objections, however, are solely based on problems that occurred at the location when it was previously operated by another person or entity. Petitioner has also indicated that if the permit is denied, he will allow patrons to bring their own alcohol into the location. Therefore, I believe that the Protestants interests will be better protected by the issuance of a beer and wine permit which is subject to regulation by this State. Accordingly, I find that the location would not have an adverse impact on the surrounding community and is suitable for an on-premises beer and wine permit as long as it conforms to the restrictions set forth below.

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 Foster Godwin, d/b/a Gossip of NE, 10961 Two Notch Rd, Elgin, South Carolina, is GRANTED upon Foster Godwin signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions that are set forth below:

RESTRICTIONS

1. Petitioner's hours of operation at the location shall be between 4:00 p.m. and 12:00 a.m. (midnight) Monday through Saturday.

2. Petitioner and its employees will, at all times, prohibit loitering and the consumption of alcoholic beverages outside of the building at the location, which specifically includes the deck and parking area. Consumption of beer and wine is limited solely to the indoor portion of the building at licensed location. “No loitering” signs must also be posted and maintained in a conspicuous place on the outside of the building at the location. These signs must be placed at the entrance and in the front, side and rear of the location.

3. Live bands and disc jockeys will not be permitted at the location. Furthermore, no music is permitted to be played on the outside of the building at the location by bands, speakers, or otherwise. Petitioner and its employees will not allow excessive noise to emanate from the location. After 10:00 p.m., any noise that is noticeably audible within any local residence with closed doors and windows shall be considered excessive. For the purposes of this restriction, any conviction for the violation of the county noise ordinance will be considered conclusive evidence of a violation of this provision.

4. In addition to music, no other activities sponsored, authorized or acquiesced to by Petitioner, will be permitted on the outside of the location.

5. The use and/or discharge of any type of firearm for any purpose, including turkey shoots, is prohibited on the licensed premises.

6. Petitioner will ensure that litter on the outside of the premises is collected and removed daily.

7. Petitioner will maintain proper lighting around the exterior of the location.

8. Parking is limited to the side of the building in the area designated on Petitioner’s Ex. #3. All vehicles, including motorcycles must park in this area. No four-wheelers will be allowed at the location.

9. Petitioner will construct, prior to opening the business, a wooden privacy fence at least six feet in height from the entrance on the side of the location to the end of the parking area, as reflected in Petitioner’s Ex. #3. As long as the Petitioner holds a beer and wine permit for this location, the fence will be maintained in good condition to accomplish both the limitation of movement between the properties and a good appearance.

10. Petitioner will also cordon off the area behind the building, as reflected in Petitioner’s Ex. #3, with a chain fence that is sufficient to prevent vehicles and patrons from entering the area.

11. A minimum of two employees will be present and working at the location during all times it is open for business.

12. In addition to the two employees required to be present during all times of operation, at least one uniformed security guard will be employed at the exterior of the building at the location during the hours of 8:00 p.m. to 12:00 a.m. (midnight) on Friday and Saturday nights.

13. Petitioner will remove the two mobile homes located to the rear of the building prior to the issuance of the permit by the Department.

14. The current entrance on the front of the building facing Two Notch Road will no longer be utilized by patrons entering and exiting the location. An entrance will be constructed where the deck is currently located on the side of the building facing the parking area and Kelly Mill Road. This entrance will be the sole point of ingress and egress to the building by all patrons.

15. No person involved in any capacity with any business that previously operated at this location will have any involvement with the operation of the current location.

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

AND IT IS SO ORDERED.

__________________________________

June 2, 2006 Marvin F. Kittrell

Columbia, South Carolina Chief Administrative Law Judge