South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Estelle Gossette, d/b/a Stella's Place vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Estelle Gossette, d/b/a Stella's Place
1768 New Hope Rd., Pomaria, S.C. 29126

Respondents:
South Carolina Department of Revenue and the Newberry County Sheriff's Office
 
DOCKET NUMBER:
00-ALJ-17-0656-CC

APPEARANCES:
Robert G. Price, Esquire, for the Petitioner

Chief Deputy Jerry Wright, Pro Se Respondent

Respondent Department of Revenue Excused

Reverend Steven D. Jackson, Pro Se Protestant
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE





This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-2-90 (Supp. 2000) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2000) for a contested case hearing. The Petitioner, Estelle Gossette, seeks an on-premise beer and wine permit for Stella's Place. The Department of Revenue (Department) made a Motion to be Excused which was granted by my Order dated January 9, 2001.

A hearing was held on this case on February 27, 2001, at the offices of the Division in Columbia, South Carolina. Chief Deputy Jerry Wright filed a Motion for Leave to Intervene on the behalf of the Newberry County Sheriff's Office. This motion was granted at the hearing and the caption amended accordingly. Protestant Reverend Steven D. Jackson also testified at the hearing in opposition to the issuance of the permit.

FINDINGS OF FACT



Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking 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 given to the Petitioner, Protestants, and the Respondents.

2. Stella's Place is located in the Newberry County town of Pomaria at the intersection of New Hope Road and Highway 176 at 1768 New Hope Road. The Petitioner has not held an on-premises beer and wine permit previously, but is now seeking one for Stella's Place. The Petitioner testified that the hours of operation would be as follows:

a. 6:00 p.m. until 1:30 a.m. on Thursday and Friday;

b. 2:00 p.m. until 11:30 p.m. on Saturday; and

c. Possible additional hours on other days from 5:00 p.m. until 10:00 p.m.

3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 2000) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit. The concerns raised at the hearing by Reverend Jackson and Chief Deputy Jerry Wright do not extend to Estelle Gossette. They have no reason to believe that she is not of good character and reputation.

5. The proposed location is not unreasonably close to any church, school or playground.

6. There is another club approximately four to five miles away.

7. This location has been licensed in the past although this Petitioner was not a part of that permit and had no connection to the business at that time. The Protestants object to the issuance of a permit to the Petitioner because of the problems that have occurred at this location in the past. The previous establishment at this location was a source of criminal activity in the community and required police presence on many occasions in recent years. Additionally, parking along Highway 176 at the club has been a problem. Cars park on the sides of the highway making it difficult for vehicles to pass. It is not clear whether these cars are parked at the bar or at the ball field because the two are so interconnected. There have also been noise complaints and complaints of trash being strewn at neighboring residences.

However, the Petitioner is establishing a new business. She has already made substantial improvements to the building, including wiring and plumbing improvements. Though most of the location's patrons are people who are in the area for ball games, the evidence did not establish that the criminal problems with the previous establishment stems from the integrity of the neighborhood or those associated with the ball games. Rather, it appears that the previous problems at the location were a result of the management and the patrons that establishment attracted. Furthermore, no action has ever been brought against a previous permit or license holder at this location asserting that the location was a nuisance to law enforcement.

Both the arguments of the Sheriff and the Protestants appear to be based on a sincere concern for their community. However, the evidence did not establish that the community has changed since the previous permit. Furthermore, though the evidence offered raises "potential" concerns that this business would create an overall adverse impact on the community, the evidence did not establish that the granting of the permit for this location will augment the criminal activity in this area or have an overall adverse impact on the community. If that change occurs after the Petitioner receives her permit, the proposed location would no longer be suitable and the Department could properly bring an action to revoke the Petitioner's permit and license.

In order to deny this permit, direct evidence of an adverse impact on the community is necessary, particularly in light of the fact that the site of the proposed location has been previously permitted. Therefore, since it appears that this new business would not change the integrity of the neighborhood or create an overall adverse impact on the community, the proposed location is suitable for an on-premise beer and wine permit with the restrictions set forth below. To the contrary, if the Petitioner does not comply with the restrictions below or if such problems as existed at the previous establishment were to occur at the Petitioner's location after she receives a beer and wine permit, the proposed location will not be suitable. (1)

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 (Supp. 2000) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance of a beer and wine permit.

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981).

5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984).

6. 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 operations 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).

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 by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. In considering the suitability of a location, it is 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).

9. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, 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 Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions on permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

10. The Petitioner meets the statutory requirements for holding an on-premise beer and wine permit at the proposed location with the following restrictions set forth below.

ORDER



Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the on-premise beer and wine permit application of Estelle Gossette be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to the restrictions that are set forth below:

1. The Petitioner or her employees shall monitor the parking area to insure that all parking is within the property lines of the proposed location. The Petitioner shall not permit parking along the shoulder of Highway 176 or New Hope Road by any of her patrons.

2. The Petitioner or her employees shall monitor the parking area to insure that trash is collected from the area.

3. The Petitioner or her employees shall prohibit loitering and the consumption of beer and wine in the parking lot area of the proposed location. Specifically, the Petitioner shall insure that there are no minors in the parking area and that no public disturbance is created.

IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an on-premise beer and wine permit upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.



_________________________________

Ralph King Anderson, III

Administrative Law Judge

April 20, 2001

Columbia, South Carolina

1. The previous permit was only for the sale of beer and wine. Therefore, this finding is limited solely to the suitability for an on-premise beer and wine permit.


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