SC Administrative Law Court Decisions

This matter comes before the South Carolina Administrative Law Judge Division pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2000) and S.C. Code Ann. § 61-2-260 (Supp. 2000) following the Petitioner's request for a contested case hearing after the Respondent's denial of the Petitioner's application for an on-premises beer and wine permit.

The Respondent filed a Motion to Be Excused, stating that the Respondent met all statutory requirements and it would have granted the permit but for the public protest by the City of York Police Department as to suitability of location. The Court denied this Motion. At the hearing, the Department of Revenue opposed the permit on the basis that the location was unsuitable. The Department's primary concern was the inability of the City of York Police Department to provide adequate law enforcement protection at this location.

The Protestant in this matter, the City of York Police Department, through counsel, filed a Motion to Intervene, alleging that (1) it could be adversely affected by the outcome of this matter, (2) its interests would not be adequately and fully represented by the existing parties, and (3) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of the existing parties. This Motion was granted by my Order of Intervention dated May 9, 2001.

A hearing in this matter was held on May 31, 2001 from 3:30 p.m. to 6:30 p.m. at the offices of the South Carolina Administrative Law Judge Division, 1205 Pendleton Street, Suite 224, Columbia, South Carolina. Notice of the time, date, place, and subject matter of the hearing was provided to all parties at least thirty (30) days prior to the hearing date.

The Petitioner, who has been operating Big Daddy's without a beer and wine permit only for private parties maintained that by operating a private club with an on-premises beer and wine permit he could exercise greater control over the operation of the club than was possible with private parties.

Having observed the testimony of the witnesses and exhibits presented at the hearing in this matter and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

• The Petitioner seeks an on-premises beer and wine permit for the establishment known as Big Daddy's, located at 516 Kings Mountain Street, York, South Carolina, to operate as a private club.
• Columbus Burris, the principal in Big Daddy's of York, was born on July 25, 1938 and was 63 years old at the time of the hearing.
• Notice of the application appeared at least once a week for three (3) weeks in The Yorkville Enquirer, a newspaper of general circulation in the local area where the Petitioner proposes to engage in business.
• Notice of the application was given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.
• Burris has been a legal resident of the State of South Carolina for over thirty (30) days and has maintained his principal place of abode in the State of South Carolina for over thirty (30) days prior to the application.
• The location has been permitted previously for the on-premises sale of beer and wine since 1988.
• Burris has been operating this location as a private club and renting the space to individuals for private parties. Prior to the application, while Burris was operating for private parties only, he was convicted of violating the City of York's noise ordinance on April 4, 2000, May 26, 2000, and November 11, 2000 at this location. On some occasions, the parties would last until 5:00 a.m.
• During 2000 and 2001, the City of York Police were called to this location numerous times for incidents ranging from repeated violations of the noise ordinance to discharging firearms within the city limits to property damage to automobiles.
• The York Police Department does not have adequate resources to provide law enforcement protection for this location.

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

• The South Carolina Administrative Law Judge Division has jurisdiction in this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000).
• 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).
• The applicant has complied with all the provisions of S.C. Code Ann. § 61-4-250 regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61-4-520(7).
• 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 retail liquor license. 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).
• 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.
• 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.
• 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).
• 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).
• In this instance there was specific and credible testimony which, by a preponderance of the evidence, demonstrated that granting the permit would have a detrimental impact on the community and place an undue burden on local law enforcement.
• I find that this location is not suitable for the on-premises sale of beer and wine.

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

ORDRED that the Petitioner's application for an on-premises beer and wine permit is DENIED.

AND IT IS SO ORDERED.

____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

June 7, 2001

Columbia, South Carolina