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. |
