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 and sale and consumption license for a private club.

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 Greenwood Police Department as to suitability of location. The Court denied this Motion.

A hearing on the merits in this matter was held on June 11, 2001 in 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.

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 Blaze Bar and Grill, located at 116 Circular Avenue, Greenwood, South Carolina, to operate as a private club.
• Shou-Mei Morris, the principal in Blaze Bar and Grill, was born on July 17, 1955 and was 45 years old at the time of the hearing.
• Notice of the application appeared at least once a week for three (3) weeks in The Index-Journal, 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.
• Morris has been a legal resident of the State of South Carolina for over thirty (30) days and has maintained her 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, wine and mini-bottles since 1993 at the restaurant.

• Morris has not had any other permits revoked within the past three (3) years.
• The Greenwood Police Department has responded to numerous calls in the past concerning various offenses, including violent offenses. ⁽¹⁾ Officers have been injured in the line of duty responding to calls at the proposed 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, wine, or mini-bottles.

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 26, 2001

Columbia, South Carolina

1. The Greenwood Chief of Police provided copies of incident reports for this location. Although some involved minor incidents, such as responding to false burglar alarms. Others were of offenses such as aggravated assault and assault and battery with intent to kill. Chief Brooks provided copies of 24 reports for 1998, 96 reports in 1999, 110 reports in 2000, and 56 reports for 2001.