South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
JSD 180, LLC, d/b/a Oscar’s vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
JSD 180, LLC, d/b/a Oscar’s

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
06-ALJ-17-0483-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For the Respondent: Lynn M. Baker, Esquire

For the Protestant: Pro se
 

ORDERS:

FINAL ORDER AND DECISION

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). JSD 180, LLC, d/b/a Oscar’s (Petitioner), seeks an on-premises beer and wine permit and a restaurant liquor by the drink license for its location at 180 East Main Street, Spartanburg, South Carolina (location). Samuel L. Davis, as Associate Pastor of First Baptist Church in Spartanburg, South Carolina (Protestant) filed a protest to the application with the South Carolina Department of Revenue (Department). Because of the protest, the hearing was required.

A hearing in this matter was held on July 25, 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 180 East Main Street, Spartanburg, South Carolina, which is located in the city of Spartanburg.

3. Julie S. Davis is the sole member of JSD 180, LLC, a limited liability company that is currently in good standing with the South Carolina Secretary of State.

4. Ms. Davis is over the age of twenty-one. She is a legal resident of the State of South Carolina and has maintained her principal place of abode in this state for at least thirty (30) days prior to making this application. She is of good moral character and has never held an alcoholic permit or license.

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

6.                  The location will be an upscale restaurant primarily and substantially engaged in the preparation and serving of meals. Its hours of operation are from 3:00 p.m. to 12:00 a.m., Monday, Tuesday, Wednesday, and Saturday, and from 3:00 p.m. to 2:00 a.m., Thursday and Friday. The location is closed on Sunday. The location has not undergone final inspection, and has not received a Grade “A” certificate from the South Carolina Department of Health and Environmental Control.

7.                  The location previously operated as a deli under different ownership. Petitioner has made substantial improvements to the location. There are eight (8) tables inside and approximately thirty (30) people can be seated at any one time. There is also a bar inside the location.

8.                  Ms. Davis, a retired schoolteacher, will be present at the location each day from approximately 3:00 p.m. to 7:00 p.m. Her daughter-in-law will be present there on a half-time basis and a Bar Manager will also be employed.

9.                  There are numerous other businesses located next to and in close proximity to the location along East Main Street. However, with the exception of a gym, most of those businesses close at 6:00 p.m.

10.              On Thursday nights, an event called Music on Main is held from 5:00 p.m. to 9:00 p.m. Main Street is closed to traffic during this event. Music is played and alcohol is also served.

11.              The main entrance of the location faces on East Main Street. There are two glass doors at the rear of the restaurant. However, the rear doors will be used solely for deliveries.

12.              Dunbar Street runs behind the location. Directly behind the location and across Dunbar Street is “The Hangar,” which is the student education building of First Baptist Church. According to the map provided by the South Carolina Law Enforcement Division (SLED), the location is approximately 380 feet from “The Hangar.”[1] First Baptist Church is located on East Main Street, approximately 598 feet from the location.

13.              There is parking along East Main Street in front of and across the street from the location. There is also parking located directly behind the location. A parking garage is also located on Main Street.

14.              First Baptist Church has a parking lot with approximately fifty (50) spaces located beside “The Hangar.” Although the church does not normally post signs or block access to the lot, it has done so on a few occasions.

15.              Samuel L. Davis, Associate Pastor of First Baptist Church, appeared at the hearing and expressed concerns about the proximity of the location to “The Hangar” and concerns about parking. Because young people frequent “The Hangar” and are often present there until late at night, Pastor Davis and the church are concerned about the students’ possible exposure to alcohol. They are also concerned that patrons of the location will use the church’s parking lot next to “The Hangar.”

16.              The 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). The Department may also seek revocation or suspension of a restaurant liquor by the drink license pursuant to S.C. Code Ann. § 61-6-1830 (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 and that Petitioner meets all of the statutory criteria for the issuance of the permit and license. The Protestant’s objections are based primarily on the location’s proximity to the church’s student education building, “The Hangar.” However, the location meets the minimum statutory distance requirements from “The Hangar” and First Baptist Church, provided that the main entrance to the location remains as shown on the SLED map. Therefore, as a condition of the permit and license, the rear doors of the building may only be used for deliveries and as an emergency exit.[2]

Protestant is also greatly concerned that patrons of the location will park in the church’s parking lot behind the location. However, there are numerous public spaces in front of, across the street from, and behind the location, as well as a parking garage on Main Street. Petitioner’s restaurant will not be open until 3:00 p.m. each day and will be closed on Sundays. Because most of the surrounding businesses close at 6:00 p.m. each day, parking on Main Street should be plentiful. Furthermore, the church can post signs or block access to their parking lot, as they have done on a few prior occasions.

There being no evidentiary showing that the location is unsuitable or that the issuance of the permit and license 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 JSD 180, LLC, d/b/a Oscar’s, for its location 180 E. Main Street, Spartanburg, South Carolina is GRANTED upon Petitioner providing the Department with a Grade “A” certificate from the South Carolina Department of Health and Environmental Control after final inspection and upon Petitioner signing a written agreement with the Department agreeing to the restriction set forth below:

RESTRICTION

The rear doors at the location will only be used for deliveries and as an emergency exit. Signs will be posted on both sides of the rear doors instructing patrons to use the East Main Street entrance.

AND IT IS SO ORDERED.

__________________________________

Marvin F. Kittrell

August 3, 2006 Chief Administrative Law Judge

Columbia, South Carolina



[1] Pursuant to 23 S.C. Code Ann. Regs. 7-303 (Supp. 2005), distance from the location to “The Hangar” is required to be measured by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest entrance of the place of business to the nearest point of entrance to the grounds of “The Hangar.”

[2] Furthermore, as to Protestant’s concerns that youth at “The Hangar” will be exposed to alcohol, Music on Main is already held every Thursday night on Main Street, and alcohol is served at that event.


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