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.
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.
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.
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