SC Administrative Law Court Decisions

This matter comes before me for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 2000). Patricia Wigfield and Paula Jean Tyler, d/b/a Backroads, (Petitioners) filed applications in the name of the Petitioner Paula Jean Tyler for an on-premise beer and wine permit and an on-premise sale and consumption (mini-bottle) license for the premises located at 6811 Oakridge Road, Clover, York County, South Carolina (location). The applications were objected to by the York County Sheriff's Office and by Mrs. Nadara Andrews (Protestants). The South Carolina Department of Revenue (Department) found that, upon the condition that the Petitioners furnish a Grade "A" restaurant permit, the Petitioners met all the statutory requirements but for the question of suitability of location.

A contested case hearing was held on Monday, May 14, 2001, at the offices of the Administrative Law Judge Division (Division), Columbia, South Carolina. The issue considered was the suitability of the proposed location.

Appearing at the hearing and offering testimony was Patricia Wigfield on behalf of the Petitioners, as well as Sgt. Marvin Mabry of the York County, South Carolina Sheriff's Office and Mrs. Nadara Andrews.

The application requests are granted with restrictions.

Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of the record. At the hearing, the Protestant, York County Sheriff's Department, placed into the record, without objection, copies of four incident reports pertaining to the location.

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 or protestants, I make the following Findings of Fact by a preponderance of the evidence:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and subject matter of the hearing was timely given to all parties and the Protestants.

3. The Petitioners, Patricia Wigfield and Paula Jean Tyler, d/b/a Backroads, are seeking an on-premise beer and wine permit and a sale and consumption license for a restaurant/bar known as "Backroads," located at 6811 Oakridge Road, Clover, York County, South Carolina. The permit and license are to be issued in the name of Paula Jean Tyler.

4. Patricia Wigfield operated a business at the location known as "Backroads" from 1987 until May of 2000. The business was formed as a corporation. In May of 2000, Ms. Wigfield learned that, due to some problems with her accountant, the corporation, which held the permit and license for the location, had been dissolved. Ms. Wigfield therefore formed a partnership with Paula Jean Tyler to seek a new license and permit and to operate the business at the location. Pursuant to the partnership agreement between Ms. Wigfield and Ms. Tyler, Ms. Wigfield owns 99% of the business and Ms. Tyler owns 1%. Although Ms. Tyler has no desire to participate in the management of the business, she is entitled to receive 1% of the profits of the business pursuant to the partnership agreement.

5. Patricia Wigfield is over the age of twenty-one (21) years. She has never held a license or permit in her own name, and has never had a license or permit revoked. Ms. Wigfield is of good moral character and has never been convicted of a crime. Although Ms. Wigfield has a Gastonia, North Carolina home address, her home actually straddles the North Carolina-South Carolina state line.

6. Paula Jean Tyler is over the age of twenty-one (21) years. She is a resident and citizen of the State of South Carolina and has been for more than thirty (30) days prior to the filing of the application. She has never held a license or permit in her own name, and has never had a license or permit revoked. Ms. Tyler is of good moral character and has never been convicted of a crime.

7. Both Ms. Wigfield and Ms. Tyler reside approximately one-eighth of a mile from the proposed location.

8. Notice of this application has appeared at least once a week for three (3) consecutive weeks in The Clover Herald, a newspaper of general circulation in the local area where the Petitioners intend to operate their business.

9. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

10. The location is in a rural area of York County, outside the town limits of Clover, South Carolina. There are residences and wooded areas in the immediate vicinity of the location. Approximately 3.5 miles from the location are several other licensed locations, including a bar and an ABC store.

11. There are no churches, schools or playgrounds within five hundred (500) feet of the proposed location.

12. The proposed location is within five miles of the North Carolina-South Carolina state line and Gaston County, North Carolina. Gaston County is a "dry" county and no alcoholic beverages may be sold there.

13. The location has seating for approximately seventy-five (75) customers and approximately one hundred (100) parking spaces.

14. Ms. Wigfield will be responsible for the daily operations of the business. She intends to operate the business as a restaurant and bar, in the same manner that she previously operated the business at the location from 1987 until May of 2000.

15. Ms. Wigfield intends to operate the restaurant between the hours of 3:00 P.M. until midnight Monday through Thursday, 3:00 P.M. until 2:00 A.M. on Friday and 3:00 P.M. until midnight on Saturday. During the winter, she plans to feature live bands on Fridays. During the summer, the only music will be provided by a jukebox.

16. The menu at the restaurant consists of pizza, hot dogs, hamburgers, chicken, shrimp, oysters, and daily specials such as spaghetti and meatloaf. Food will be available to customers during all hours the restaurant is open for business.

17. The York County Sheriff's Department, through Sgt. Marvin Mabry, protested the application and introduced into evidence four incident reports pertaining to the location when Ms. Wigfield previously operated the business. The incidents consisted of one aggravated assault involving two patrons of the location, one assault and battery in which Ms. Wigfield was struck by a patron, one property damage claim in which a patron damaged the jukebox at the location, and one strong armed robbery and assault and battery in which Ms. Wigfield was struck on the head and the location was robbed. Ms. Wigfield was the complainant in most of these incident reports.

18. Because of the location's close proximity to the North Carolina state line, it is difficult for the York County Sheriff's Department to provide efficient and adequate police protection to the proposed location. It usually takes 15-20 minutes for a York County deputy to respond to a call anywhere in the county. Therefore, when a call is made to the Sheriff's Department for assistance at the location, the individuals involved in the incident can be across the state line by the time a deputy is able to arrive. However, Sgt. Mabry testified that the proposed location has not created any more problems for the Sheriff's Department than has any other licensed location in the county. Moreover, Ms. Wigfield testified that local law enforcement has never advised her to change anything about the operation of the location.

19. Ms. Nadara Andrews also protested the application. She resides approximately two miles from the proposed location and has been a resident of the community for many years. Although Ms. Andrews cannot, from her residence, hear any noise emanating from the location, she has observed large crowds at the location in the past, especially when the location was being operated under the name "Teeny's," prior to Ms. Wigfield's ownership of the business. Ms. Andrews expressed concerns that the location is unsuitable for the area, that it is too close to the North Carolina line, that it would attract undesirable elements to the community and cause an increase in crime, and that it would cause a strain on law enforcement.

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

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, as regulated by the State.

3. S.C. Code Ann. § 61-4-520 (Supp. 1999), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

1) The applicant, any partner of co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.

2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4) The applicant, within two years before the date of application, has not had revoked a beer or wine permit issued to him.

5) The applicant is twenty-one years of age or older.

6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.

8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section . An applicant for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

4. S.C. Code Ann. § 61-6-1820 (Supp. 2000), which sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license, provides as follows:

The Department may issue a license under subarticle 1 of this article upon finding:

1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging.

2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace and good order in its community, and its principals are of good moral character.

3) As to business establishments or locations established after November 7, 1962, § 61-6-120 has been complied with.

4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer and wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.

5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of license sought;

(b) tell an interested person where to protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

6) The applicant is twenty-one years of age or older.

7) The applicant is a legal resident of the United States, has been a resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in this State for at least thirty days before the date of application.

8) The applicant has not been convicted of a felony within ten years of the date of application.

5. S.C. Code Ann. § 61-6-120 (Supp. 2000) provides that a liquor license shall not be issued if the place of business to be licensed is located within three hundred feet of any church, school, or playground situated within a municipality, or within five hundred feet of any church, school, or playground situated outside of a municipality. No churches, schools, or playgrounds are located within the prescribed proximity to render the proposed location unsuitable based on this distance requirement.

6. A license for the sale and consumption of alcoholic beverages must not be granted unless the location will be operated as either a bona fide nonprofit organization or a bona fide business engaged primarily and substantially in food preparation and service or the furnishing of lodging. The Petitioner Paula Jean Tyler is applying for a liquor license at a location which will be engaged primarily in the preparation and serving of food.

7. S.C. Code Ann. § 61-6-20 (2) and (4) (Supp. 2000), which define a bona fide business engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, read in part as follows:

As used in the ABC Act, unless the context clearly requires otherwise:

(2) "Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

. . . .

(4) "Furnishing lodging" means those businesses which rent accommodations for lodging to the public on a regular basis consisting of not less than twenty rooms.

The proposed location provides facilities for seating seventy-five (75) persons at tables, has a menu, and will make food available to patrons at all times it is open for business. Although the location does not yet have a Class A restaurant license, the Petitioners stipulated that such a license would be obtained prior to any issuance of a mini-bottle license. Accordingly, I conclude that, upon the issuance of a Class A restaurant license, the location will be a bona fide business engaged primarily and substantially in the preparation and serving of meals.

8. A license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 2000)

if: (1) the applicant is not a suitable person to be licensed; (2) the store or place of business to be occupied by the applicant is not a suitable place; or (3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated municipality, or other community.

9. Petitioner Paula Jean Tyler has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2000), concerning her residency and age, as well as the publication and notice requirements.

10. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. 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 witnesses and determine the relevance and weight of any testimony and evidence offered.

11. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

12. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). An applicant seeking a permit or license at a location that has been previously permitted and/or licensed, must still meet the statutory requirements and the location must be found to be suitable.

13. When a proposed location is within five miles of a political subdivision of another state in which the sale of beer or wine is prohibited, the proximity of the location to the prohibited area, the likelihood that large crowds may gather at the location, the effect on law enforcement, and any other related factors must be considered by the trier of fact prior to the issuance of a permit. S.C. Code Ann. § 61-4-530 (Supp. 2000).

14. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

15. In this case, the testimony of Sgt. Mabry and Ms. Andrews about the close proximity of this location to the North Carolina state line and the problems experienced at the location in the past is credible evidence which this court must consider. In order to minimize adverse effects on local law enforcement and on the surrounding community, I conclude that restrictions must be placed on the permit and license.

16. A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the permit or license pursuant to S.C. Code Ann. §§ 61-4-580 and 61-6-1830 (Supp. 2000).

17. S.C. Code Ann. § 61-2-160 (Supp. 2000) prohibits the issuance, renewal or transfer of a permit or license under Title 61 if the applicant owes state or federal government delinquent taxes, penalties or interest.

18. I conclude that the Petitioners have met their burden of proof in showing that they meet all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption (mini-bottle) license at the location. I further conclude that the proposed location is a proper one for granting the permit and license, subject to the following restrictions which must be stipulated to.

1. The Petitioners or their employees shall maintain proper lighting around the proposed location to discourage criminal activity. The Petitioners shall insure that the lights do not reflect or shine upon surrounding residences.

2. The Petitioners or their employees shall prohibit loitering, littering, and the consumption of beer, wine, or liquor by customers in the parking lot area of the proposed location.

3. The Petitioners or their employees shall permit parking only in the parking lot at the location. No parking shall be permitted in the roadway or right of way.

4. The Petitioners shall employ a security guard to patrol the location from 6:00 P.M. until closing on Friday and Saturday nights.

5. The hours of business at the location shall be from 3:00 P.M. until 11:00 P.M. Monday through Thursday, 3:00 P.M. until 1:00 A.M. on Friday, and 3:00 P.M. until midnight on Saturday.

6. Live music will be permitted at the location only on Friday nights.

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

ORDERED that the Petitioners' application in the name of Paula Jean Tyler, d/b/a Backroads, for an on-premise beer and wine permit and a business sale and consumption (mini-bottle) license for the location at 6811 Oakridge Road, Clover, York County, South Carolina, is granted upon payment of all fees and satisfaction of all statutory requirements including a Grade A restaurant permit, and it is further

ORDERED that the permit and license shall only be issued by the Department upon the Petitioners signing a written statement to be filed with the Department to adhere to the restrictions set forth above; and it is further

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

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

May 30, 2001

Columbia, South Carolina