ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) on the application
of Charlene Goodman, d/b/a Trey's House, for an on-premises beer and wine permit and minibottle license for a business to be
located at 72 Chestnut Street, Cheraw, South Carolina. After notice to the parties and Protestant, a hearing was conducted on
November 21, 2000. Based upon the evidence presented regarding the suitability of the location, this tribunal finds the nature of the
area in which the business is to be located not suitable for a beer and wine permit and minibottle license. Any motions or issues
raised in the proceedings but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, 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. On or about June 2, 2000, Petitioner, Charlene Goodman, submitted an application for an on-premises beer and wine permit and a
bona fide restaurant minibottle license to the South Carolina Department of Revenue for the premises located at 72 Chestnut Street,
Cheraw, South Carolina. Petitioner's application is incorporated into the record by reference.
2. Petitioner leases the proposed location from Jerry Astolos. Since 1988, various proprietors have intermittently operated a
business at this location under a beer and wine permit and minibottle license.
3. Petitioner has no criminal convictions and is a person of good moral character.
4. Petitioner is a legal resident of the United States.
5. Petitioner has resided in and maintained her principal place of abode in South Carolina for more than thirty days before applying
for a beer and wine permit and minibottle license.
6. Petitioner proposes to offer meals, beer and wine and liquor, and entertainment consisting of recorded and live music.
7. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has never had any permit to sell beer
and wine or alcoholic liquors suspended or revoked.
8. Petitioner is over twenty-one years of age.
9. Notice of application for the beer and wine permit and minibottle license was published in The Cheraw Chronicle on May 4, 11,
and 18, 2000. Notice was also posted at the proposed location for the required time period.
10. Rev. Jerry Corbett, as well as a number of residents of the community, opposes the issuance of the permit and license in question
on grounds that the proposed location is unsuitable because of its proximity to residences and the numerous incidents which have
occurred during its past operation. He claims that the operation of this location would adversely impact the residents' quality of life.
The residence nearest to the proposed location is situated at approximately 337 feet.
11. Over the years of its operation, several incidents and disturbances involving fights, gunfire, and drug use have occurred at the
proposed location, disrupting the peace of the neighborhood.
12. The Department refused to issue the beer and wine permit and minibottle license, contending that Petitioner has not satisfied all
statutory and regulatory criteria. Specifically, the Department asserts that the proposed location is not adequately designed for
operation of a bona fide restaurant engaged primarily and substantially in the preparation and service of meals.
13. The proposed location does not currently have an operational kitchen, menus, or the capacity to seat forty persons simultaneously
at tables for the service of meals.
14. The evidence suggests that the proposed location will operate as a night club if permitted.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999), S.C. Code
Ann. § 1-23-600(B) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 1999).
2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to
whom the duty of issuing it is committed[.]" Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3. S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1999), respectively, establish the criteria for the issuance of a beer and wine
permit and minibottle license. Although the suitability of the proposed location is not listed in § 61-6-1820 as a condition of
licensing, such a consideration is proper. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Further, S.C. Code
Ann. §61-6-20(2) (Supp. 1999) and 23 S.C. Code Ann. Regs. 7-19 (Supp. 1999) prescribe supplemental parameters and details for
implementing the statutory requirements for a business establishment before issuance of a beer and wine permit or minibottle license.
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the
fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5. 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); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308
(1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse
circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984); see Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
7. "[A] liquor license or permit may properly be 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).
8. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may find the
location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Byers v. S.C.
ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
9. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell
Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the
witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay
v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282
S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
10. This tribunal is respectful of the fact that Petitioner has expended time and resources in attempting to secure the permit and
license in question. Nevertheless, there was a sufficient evidentiary showing in the present case that the proposed location is
unsuitable and that the issuance of a beer and wine permit or minibottle license would have an adverse impact on the community,
given the record of criminal disturbances at the location during past operations.
11. I find the location to be unsuitable for the issuance of a beer and wine permit and a minibottle license for the aforementioned
reasons.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Department shall not issue to Petitioner an on-premises beer and wine permit and minibottle license for the
aforementioned location.
AND IT IS SO ORDERED.
_________________________________
JOHN D. GEATHERS
Administrative Law Judge
December 12, 2000
Columbia, South Carolina. |
