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.”
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.
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
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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