ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Show, Inc.,
d/b/a Cross Road Bar & Grill (“Petitioner”), for an on-premises beer and wine permit and a sale and
consumption (“minibottle”) license for a location at 2 East Hwy. 90, Little River, South Carolina
(“the subject location”). Prior to the hearing in this matter, Petitioner withdrew its request for a
minibottle license and indicated its desire to proceed only with its on-premises beer and wine permit
application. For the following reasons, the Petitioner’s application is denied.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, 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 all
parties and to the Protestants in a timely manner.
2.Petitioner seeks an on-premise beer and wine permit for the subject location of 2 East
Hwy. 90, Little River, South Carolina.
3.Petitioner purchased the business at the subject location in December 2002. On the
permit application, Petitioner stated that it plans to operate a restaurant there.
4.The subject location was licensed from 1996 until 2003. Petitioner obtained a
temporary beer and wine permit in November 2002, which expired in the middle of May 2003.
5.DOR opposed the permit application, arguing that the location is unsuitable due to
the close proximity to a church, and that the owner and/or a certain individual who may be involved
in the operation of the business lack good moral character.
6.Two Protestants testified at the hearing on Petitioner’s application. Reverends
Antonio and Maria Perez (“Protestants”) are pastors at Father’s Cup Ministries, which is located
approximately 248 feet from the subject location. The Protestants testified that they have seen men
go into the Petitioner’s establishment and then come out with women, loiter in the parking lot, drink
beer, and engage in activity of a sexual nature. They testified that they hear a lot of profane and
abusive language from the men who loiter in the parking lot, and that they see a lot of beer bottles
left lying in the lot. They further testified that the members of their church often come to the church
at night to pray, including many single women, and that they are concerned for the members’ safety
due to the activity in the parking lot. They stated that the activity going on in the parking lot is not
what they want the members of their church to see as they are coming to and from church.
7.The Protestants testified that Father’s Cup Ministries has been in its current location
since September 2002. They stated that the activity in the parking lot that they described in their
testimony was not going on at the time they leased the space for their church, and that they thought
the establishment at which the Petitioner now operates was closed when they first moved in.
8.During the testimony of Shou-Mei Morris, owner of Show, Inc., it became apparent
that the Petitioner’s establishment operates primarily as a bar, rather than as a restaurant, and that the
Petitioner allows female dancers to perform in the bar on a regular basis.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law, the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2002), which sets forth the requirements for the
issuance of a beer and wine permit, provides in part:
No permit authorizing the sale of beer or wine may be issued unless . . .
(6) The location of the proposed place of business of the applicant
is in the opinion of the department a proper one.
(7)The department may consider, among other factors, as indications of
unsuitable location, the proximity to residences, schools, playgrounds and
churches.
S.C. Code Ann. § 61-4-520 (6), (7) (Supp. 2002).
3.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a 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 on the community within which it is to be located.
Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may
be considered.
4.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 or suitability of the proposed business
location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion.
Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the
fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the
relevance and weight of any testimony and evidence offered.
5.Proximity of a location to a church, school, playground, or residence is a proper
ground, by itself, on which the location may be found unsuitable for a permit to sell beer and wine.
Byers v. S.C. ABC Comm’n, 305 S.C. 243, 401 S.E.2d 653 (1991); Moore v. S.C. ABC Comm’n,
308 S.C. 167, 417 S.E.2d 555 (1992).
6.Based on the weight of the evidence, I find that the location is not a proper one due
to the proximity to a church, Father’s Cup Ministries.
7.Because I find that the location is unsuitable for a permit to sell beer and wine, there
is no need to address the Department’s argument regarding moral character.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for an on-premises beer and
wine permit for the location at 2 East Hwy. 90, Little River, South Carolina, is denied;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
June 3, 2003
Columbia, South Carolina |
