ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) upon the
request of the Petitioner Carmen L. Davis, d/b/a Toppers No Limit for a contested case hearing
pursuant to S.C. Code Ann. §61-4-520 et seq. (Supp. 2002). The Petitioner seeks an on-premises
beer and wine permit for the location at 757 A Pinckney Road, Chester, South Carolina. This
matter is presently before the Division because of a protest by a concerned citizen concerning the
suitability of the location. The Respondent moved to be excused since but for the protest it would
have issued the permit and license. This motion was denied. After notice to all parties and the
Protestant, a hearing was conducted on May 6, 2003, at the Division in Columbia, South
Carolina. At the hearing, the parties and Protestant were present as indicated above.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit for the location known
as Toppers No Limit, located at 757 A Pinckney Road, Chester, South Carolina.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements at the time of the application and would
have granted the permit but for the protest as to suitability of the location. At trial, evidence was
presented by the Petitioner that she intended to have Mr. William King assist her in operating the
club. Mr. King testified that he would not have an ownership interest in the club, but would help
out as needed. Based on this evidence, the Department moved to hold any decision in abeyance
for thirty days to give the Department time to conduct a background investigation of Mr. King.
3. The location is in an area of Chester that is a mixture of residential and
commercial establishments. The Petitioner intends to have a pool room at the proposed location
with a DJ in the evenings. She has started to construct a fence to define the parking area behind
the proposed location, but stopped when the protest was received. She has indicated that she will
complete the fence if the license is granted. The Protestant contends that part of the fence is on
her property.
4. There are currently other facilities in the area that serve alcohol. Testimony was
presented that this location has been licensed in the past for alcohol sales, but the Respondent did
not have a record of that license.
5. The Protestant lives behind the proposed location. She fears violence will occur
at the game room and spill over into her community. She has had problems in the past with noise
and litter from the location. She is concerned about the proximity of the location to the nearby
church, her mother’s beauty salon, and the increased traffic in the area due to the club.
6. The Petitioner testified that Mr. William King will assist her in running the
club if the license is approved. Mr. King has held temporary beer and wine permits from the
Department of Revenue in the past. He testified that he has not been arrested and that he is a
person of good moral character. Because the application did not list Mr. King as either as a
manager or employee of Toppers No Limit, the Respondent requested that the record be held
open for an additional thirty days so that the Department of Revenue could obtain a SLED check
on Mr. King. The Court granted this request.
7. The applicant is of good moral character. The State Law Enforcement Division’s
criminal background investigation revealed no criminal violations for the applicant. However, the
additional investigation of Mr. King, conducted after the hearing, revealed that he has had
numerous arrests in Chester county from 1992 through 2001, including several counts of Breach
of Trust with Fraudulent Intent, several counts of passing fraudulent checks, two counts of petit
larceny, and one count of possession of drug paraphernalia. Based on this information, the
Department of Revenue, by letter received by this Court on June 10, 2003, revised its
determination, and now opposes the Petitioner’s application, stating that Mr. King is not of “good
moral character” as required by S.C. Code Ann. § 61-4-520 (Supp 2002). The fact that Mr. King
testified at the hearing that he had not been arrested serves to underscore that determination.
8. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained her principal residence in the State for at least thirty
days prior to the application.
9. Notice of the application appeared in The Chester News and Reporter, a
newspaper of general circulation in the area of the proposed location, once a week for three
consecutive weeks and notice was posted at the proposed location for fifteen days.
10.Mr. Eli “Butch” Harrison was originally listed on the Petitioner’s application as an
employee of the club, but Petitioner testified that he would not be employed after the SLED check
by the Respondent revealed Mr. Harrison has a criminal record.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.The South Carolina Administrative Law Judge Division has jurisdiction over this
matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002).
2.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact to determine the fitness or suitability of the proposed business location of an
applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C.
593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit).
4.It is also the fact finder’s responsibility to judge the demeanor and credibility of the
witnesses and determine the relevance and weight of any testimony offered.
5.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 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. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991).
Further, the Judge may consider whether there have been law enforcement problems in the area.
Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also,
the Judge may consider the proximity or the absence of other licensed locations in the immediate
vicinity, as well as the existence of small children in the area.
6.In considering the suitability of a location, it is relevant to consider the previous
history of the proposed location and to determine whether the testimony in opposition to a permit
consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
7.Without 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 alone to deny the application. 48
C.J.S. Intoxicating Liquors § 119 (1981). In this case, however, the statutory criteria are not
satisfied. The Petitioner has attempted to employ two different men, Mr. King and Mr. Harrison,
to assist her in running this club. In each case, it has been determined that the employee has a
criminal record and is not of good moral character as required by S.C. Code Ann. § 61-4-520
(Supp 2002). In addition, Mr. King’s unwillingness to admit that he had in fact been arrested
leads to the conclusion that his testimony is not credible.
8.S.C. Code Ann. § 61-4-525 (Supp. 2002) provides that a person residing in the
county in which a beer and wine permit is requested to be granted, or a person residing within five
(5) miles of the location, may protest the issuance of the permit if he files a written protest.
9.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina
Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10.After considering all the relevant factors, I find that while the location may be
suitable for the on-premises sale of beer and wine, that the inability of the Petitioner to employ
people of good moral character to assist her with this club, necessitates a denial.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue deny the Petitioner’s
application for an on-premises beer and wine permit.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
June 11, 2003
Columbia, SC |
