SC Administrative Law Court Decisions

This matter comes before the Administrative Law Court (ALC or Court) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005), 61-2-260 (Supp. 2005), 61-4-525 (Supp. 2005) and 61-6-1825 (Supp. 2005). Shermo Inc., d/b/a Doolie’s Sports Bar & Grill (Petitioner), seeks an on-premises beer and wine permit and a restaurant liquor by the drink license for its location at 7150 Augusta Road, Piedmont, South Carolina (location). Bishop Ethel M. Talbert-Spearman (Protestant) filed a protest to the application with the South Carolina Department of Revenue (Department). Because of the protest, the hearing was required.

An expedited hearing in this matter was held on June 20, 2006 at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and the Protestant appeared at the hearing. Evidence was 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 and restaurant liquor by the drink license should be granted with one restriction.

FINDINGS OF FACT

Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, 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 timely given to all the parties and the Protestant.

2. Petitioner seeks an on-premises beer and wine permit and restaurant liquor by the drink license for its location at 7150 Augusta Road, Piedmont, South Carolina, which is located in Greenville County, outside of the city limits.

3. Sharon and Don Stout are the owners of Shermo, Inc., a corporation currently in good standing with the South Carolina Secretary of State.

4. Both Mr. and Mrs. Stout are over the age of twenty-one. They are legal residents of the State of South Carolina and have maintained their principal place of abode in this state for at least thirty (30) days prior to making this application. They are of good moral character and have not had an alcoholic permit or license revoked in the last two (2) years.

5.                  Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

6.                  The location is a restaurant primarily and substantially engaged in the preparation and serving of meals. Its hours of operation are from 11:00 a.m. to 2:00 a.m., Monday through Friday, and from 11:00 a.m. to 12:00 a.m. on Saturday. The location is closed on Sunday. Its menu includes items such as hamburgers, chicken tenders, wings, and other sandwiches and appetizers.

7.                  The location is a sports bar and opened under Petitioner’s ownership on March 7, 2006. It has operated under a temporary permit and license for the sale of beer, wine and liquor since that time without incident. The temporary permit and license expired on June 28, 2006. The location has been licensed for the sale of alcoholic beverages in the past. There is also another location licensed for the sale of alcoholic beverages in close proximity to the location.

8.                  A church, Faith Cathedral Ministries, is located on approximately one and a half acres of property behind and adjacent to the location. Pursuant to a map provided by the South Carolina Law Enforcement Division (SLED), the location is 656 feet from the church.[1]

9.                  Bishop Ethel Talbert-Spearman, the Pastor of Faith Cathedral Ministires, appeared at the hearing and expressed concerns about the proximity of the location to the church based in part upon the fact that children’s programs are held at the church and based up on the church’s limited parking. The church has not experienced any problems as a result of the operation of Doolie’s Sports Bar & Grill since its opening in March 2006.

10.              The proposed location is suitable for an on-premises beer and wine permit and restaurant 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 (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 responsibility to determine contested matters governing alcoholic beverages, including beer, wine and liquor.

3. S.C. Code Ann. § 61-4-520 (Supp. 2005) sets forth the requirements for the issuance of a beer and wine permit.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2005) sets forth the requirements for the issuance of restaurant liquor by the drink license. Section 61-6-1820(1) provides that an applicant may receive a license upon the finding that "[t]he 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."

5. S.C. Code Ann. § 61-6-120 (Supp. 2005) further provides that a liquor license shall not be issued to a place of business if:

the place of business is …within five hundred feet of any church, school, or playground situated outside of a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along a public thoroughfare from the point of the grounds in use as part of such church, school, or playground…

23 S.C. Code Ann. Regs. 7-303 (Supp. 2005) clarifies how distances from the location to schools, churches, and playgrounds are measured.

6. 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).

7. 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).

8. 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.

9. 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).

10. 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).

11. Furthermore, 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.

12. 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).

13. I conclude that the location is suitable for the issuance of an on-premises beer and wine permit and restaurant liquor by the drink license. Petitioner meets all of the statutory criteria for the issuance of the permit and license. Furthermore, Petitioner has operated this location without incident since its opening on March 7, 2006 and the church also has not experienced any problems resulting from the operation of Petitioner’s business since its opening. The Protestant’s objections are based primarily on the location’s proximity to the church. However, the location meets the minimum statutory distance requirements from the church, provided that the sole entrance to the location remains as shown on the SLED map submitted to the Court on July 13, 2006. There being no evidentiary showing that the location is unsuitable or that the issuance of the permit would have an adverse impact on the community, I conclude that Petitioner’s application for an on-premises beer and wine permit and restaurant liquor by the drink license is granted with the restriction 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 and restaurant liquor by the drink license by Shermo Inc., d/b/a Doolie’s Sports Bar & Grill, for its location 7150 Augusta Road, Piedmont, South Carolina is GRANTED upon Petitioner signing a written agreement with the South Carolina Department of Revenue agreeing to the restriction that is set forth below:

RESTRICTIONS

1. The present entrance to the location as shown on the SLED map submitted to the Court on July 13, 2006, must remain the sole entrance for ingress and egress of vehicular traffic at the location.

AND IT IS SO ORDERED.

__________________________________

Marvin F. Kittrell

Chief Administrative Law Judge

July 13, 2006

Columbia, South Carolina