South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Gametime Bar & Grill, LLC, d/b/a Gametime Bar & Grill vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Gametime Bar & Grill, LLC, d/b/a Gametime Bar & Grill

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
06-ALJ-17-0381-CC

APPEARANCES:
For the Petitioner: James Harrison, Esquire

For the Department of Revenue: Excused

For the Protestant: Reverend Bobby Cutter
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 61-2-90 & 61-2-260 (Supp. 2005) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2005) for a contested case hearing. Petitioner seeks an on premise beer and wine permit. Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protest it received this application would have been granted. Finding “good cause” the Department’s motion was granted by my Order dated July 6, 2006. A hearing was held on July 18, 2006 at the offices of the Administrative Law Court in Columbia, South Carolina.

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 proof upon the Petitioner and the Protestant, 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 given to the Petitioner and the Protestant.


2. Petitioner seeks an on-premise beer and wine permit for Gametime Bar and Grill, LLC, d/b/a Gametime Bar and Grill, located at 100 Chestnut Street, Abbeville, South Carolina.

3. There are no schools in close proximity to the proposed location.

4. Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

5. Dwayne and Denise King are the two principals of Gametime Bar & Grill, LLC. The Kings currently reside in Washington D.C. and intend on remaining there indefinitely. They do not have a criminal record and are of sufficient moral character to receive an on-premise beer and wine permit. However, Denise King’s brother, Terrance Rayford, will be the manager of the business. Mr. Rayford has been convicted in the past for violating S.C. Code Ann. § 61-4-110 (2005). Nevertheless, Mr. Rayford has lived in Abbeville his entire life and the evidence presented indicates that he is well respected in the community. Thus, in light of the evidence presented at the hearing, I find that Mr. Rayford is of sufficient moral character to act as manager of a location with a beer or wine permit.

7. Reverend Bobby Cutter is the sole Protestant against the issuance of this permit. Reverend Cutter’s main concerns regarding this restaurant are that:

a. The location has less than sufficient parking, as evinced by cars already parking along the fence and in front of the building,

b. The building is only 225 feet from the front door of his church and only thirty-five (35) feet from the fence on the church’s property. There is a playground located near the fence and Reverend Cutter worries that an increase in restaurant patrons may adversely affect the children playing in the area,

c. There was a shooting at the night club next door to Petitioner’s location, Brown Suga’, in January of 2006, and

d. The proposed location is one block away from a Christian Faith Home for recovering alcoholics and drug addicts. The home houses between ten (10) and fifteen (15) women at all times.

8. The Gametime Bar & Grill property is located in Abbeville, South Carolina. Gametime is currently open from 11 a.m. until 9 p.m. serving both lunch and dinner. They serve a full menu including fried chicken, wings, seafood, hot dogs and hamburgers. If permitted, Gametime intends to extend their hours of operation until midnight.

Gametime is situated in an area that is primarily commercial in nature. There are several businesses in the area including a night club, restaurant, liquor store and convenience store. Since at least 1977, several businesses which have operated at the location have held an off-premise beer and wine permit. The most recent business was a convenience store and grill which held an off-premise beer and wine permit. After that business closed, the building upon the property became dilapidated. Vagrants often loitered upon the property and drug activity was prevalent. Since purchasing the property, Petitioners have renovated and cleaned-up the area around the building. With the changes to the property and the efforts of Mr. Rayford in conjunction with local law enforcement, the vagrancy, loitering and criminal activity are now gone.

The proposed location is approximately 225 feet from the Protestant’s church and approximately 32 feet from the fence surrounding the church's property. It also located next to the church’s playground for its children. That playground, however, was recently moved next to the proposed location after the application by Gametime and no testimony was presented as to the distance to the entrance to the playground. Though the location is close to the church, I find that the area is suitable for an on-premise beer and wine permit for a restaurant. Nevertheless, the location does present several problems.

Gametime does not appear to have adequate parking in front of the location for a restaurant. In fact, currently patrons of the location often park on the side of a curving roadway beside the location. Though parking directly in front of the location is limited and parking along the roadway could create a traffic hazard, the area to the side of the location appears to offer adequate parking.[1] Furthermore, given its close proximity to the church the location does not appear suitable for a bar. Indeed, this concern was referenced by the Honorable John D. Geathers in reviewing the specific location for an off-premise permit in 2002. Carnell Syrkett, d/b/a Southern Cash Grocery, 100 Chestnut Street, Abbeville v. S.C. Dep’t of Revenue, 02-ALJ-17-0257-CC, 2002 WL 31423810 (S.C. Admin. Law Judge Div., September 5, 2002) (“A convenience store selling beer and wine for off-premise consumption simply does not engender the sorts of problems associated with establishments that allow patrons to congregate and consume beer and wine on their premises, with the attendant merrymaking and potential disturbance to neighbors common to such gatherings.”). Therefore, the determination of suitability is solely limited to the operation of the location as a restaurant with a sports theme with parking restricted as set forth below.[2] Any operation of this business outside of these parameters would be deemed unsuitable.

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. S.C. Code Ann. § 61-2-260 (Supp. 2005) also 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 a beer and wine permit. Section 61-4-520 (5) provides that location of the proposed place of business must be a proper one. Furthermore, Section 61-4-520 (6) provides that in making that determination the Department, and thus the ALC, “may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches.”

The determination of the suitability of a location “is not solely a function of geography but involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact upon the community wherein it is to be situated.” Palmer v. S.C. Alcoholic Beverage Control Com'n, 282 S.C. 246, 249 317 S.E.2d 476, 475 (Ct. App. 1984). Generally, beer and wine permit may be properly 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). Nevertheless, without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. Furthermore, 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). Thus, 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. Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). It is also relevant to consider the previous suitability of the location. See Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, supra.

As noted above, the ALC may consider proximity of the location to “residences, schools, playgrounds, and churches.” However, Section 61-4-520 (6) does not apply to locations licensed before April 21, 1986. Here, the proposed location was licensed for the off-premise sale of beer and wine prior to April 21, 1986. Nevertheless, since the Petitioner is now seeking an “on-premise”, the ALC is not precluded from considering the factors of Section 61-4-520(6). On the other hand, the fact that the location has been previously determined to be suitable for an “off premise” permit is also a consideration. Furthermore, the fact that the church moved to this location after the location was previously permitted is also a consideration.

3. 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 Court, 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, 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.

4. Petitioner meets the statutory requirements for an on-premise beer and wine permit at this location with the following 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-premise beer and wine permit of Gametime be granted upon Petitioner entering into a written agreement with the Department incorporating the restrictions set forth below:

1. The Petitioner shall limit its customers parking to directly in front of the proposed location and the vacant area reflected in Petitioner’s Exhibit 1B as addressed in the Finding of Facts.

2. The Petitioner shall not sell beer or wine after 12:00 a.m.

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

IT IS FURTHER ORDERED that the Department resume processing Petitioner’s application and issue an on-premise beer and wine permit and restaurant sale and consumption license to the Petitioner upon a satisfactory final inspection and payment of the proper fees and costs.

AND IT IS SO ORDERED.

____________________________________

Ralph King Anderson III

Administrative Law Judge

August 8, 2006

Columbia, South Carolina



[1] The area referenced in the opened lot that is located on side opposite of the church. If that area is not owned by Petitioners then the proposed location appears to have only parking sufficient for approximately eight vehicles which would be adequate only if a very small restaurant was operated at the location.

[2] Though I recognize that the location currently has, and will continue to have pool tables, the testimony of the applicants indicated that this location will not feature dancing and drinks from a bar, but rather a location in which meals will be served and patrons can meet to watch sporting events. Accordingly, my use of the phrase restaurant with a sports theme envisions a family type location that does not offer dancing or music as entertainment.


Brown Bldg.

 

 

 

 

 

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