SC Administrative Law Court Decisions

STATEMENT OF THE CASEThis matter comes before the Administrative Law Judge Division ("ALJD") pursuant to S.C. Code Ann. § 61-2-80 (Supp. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a hearing pursuant to the application of Donnie Huckabee, d/b/a Huckabee's ("Petitioner" or "Huckabee's") for an on-premises beer and wine permit at Angelus Road and Highway 109, Ruby, South Carolina. Petitioner applied for an on-premises beer and wine permit, however, the South Carolina Department of Revenue ("Department") denied Petitioner's application because of public protest by citizens in the community ("Protestants") concerning the suitability of the proposed location. Reverend Bowling C. Yates, III moved to intervene as a party, and the motion was granted. Department moved to be excused from appearing at the hearing, and the motion was granted.

A hearing was held before the undersigned Administrative Law Judge ("ALJ") in Columbia, South Carolina, on June 20, 2001. Notice of the time, date and place of the hearing was timely given to all parties and the Protestants.

SUMMARY OF TESTIMONY

Donnie Huckabee testified at the hearing that he has owned the land where the proposed location is situated since the mid 1970's. He later had the building where the proposed location is situated moved onto the land. There are two pool tables, a juke box, a bar area, two restrooms and three free standing tables inside the building. There is a parking lot in the front of the building and two outside security lights. Huckabee lives approximately one-fourth (1/4) of a mile from the proposed location.

Huckabee testified that about six months ago the company he had been working for down sized, and he lost his job. He opened Huckabee's in January of 2001. Petitioner has been selling sodas, snacks, cigarettes and collecting money for the use of the pool tables and juke box as his primary source of income. Petitioner has allowed customers twenty-one (21) years of age and older to bring their own alcohol into the business and consume their own alcohol at the proposed location. Petitioner applied for an on-premise beer and wine permit and planned to sell alcohol to generate additional income.

Petitioner stated that he has received no complaints by local residents concerning the operation of his business since it opened in January.

Ricky Quick is a Captain with the Chesterfield County Sheriff's Office and testified at the hearing on its behalf. Quick stated that the sheriff's department employed few officers in relation to the size of the county it serves. Quick was concerned that Chesterfield County lacked the law enforcement to properly patrol the area of the proposed location. The Captain testified that Petitioner has no criminal record. He stated that the proposed location is convenient to Highway #109 and is fairly accessible. Quick testified that the entire building of the proposed location could not be seen from the front door of White Oak Presbyterian Church; he stated that only the building color, white, could be seen from that view.

Reverend Bowling Yates, III is the pastor at White Oak Presbyterian Church and testified at the hearing. Yates indicated he was concerned that the issuance of a beer and wine permit to the proposed location may have an adverse effect on the community. He stated there have been automobile accidents on Angelus Road in the past two years that have ended in two fatalities. The Reverend was concerned that the number of drunk drivers in the area may increase if the proposed location is allowed to serve alcohol. An increase in traffic was also a concern of Yates since the proposed location is near the intersection of Angelus Road and Highway 109. He testified that White Oak Presbyterian Church was approximately two-tenths (2/10) of one mile from the proposed location. Yates feels the activities of the church, which include, vacation bible school, family reunions, weddings, revivals, and funerals, will be disrupted due to the sale of alcohol at the proposed location. However, Yates stated on cross-examination that the church has had no problems with disturbances by Huckabee's since it has opened.

Patricia Crowley, Joel Short, Reverend Wade Miles, Marsha Pixler, Billy Ratliff, Thomas Hilton and Vonzile Jordon live in the community of the proposed location and testified at the hearing. These citizens expressed concerns about the issuance of a beer and wine permit to the proposed location. The Protestants stated they believe the traffic will increase in this area, and there may be more intoxicated drivers on the road. They also informed the tribunal that they did not desire to have this type of business nearby because there are several children and elderly people in their community. Two Protestants testified that they have had a family member killed in an automobile accident where alcohol was involved.

Thomas Hilton lives next door to the proposed location and owns a restaurant across the street from the proposed location. He is concerned about his property value decreasing if the beer and wine permit is granted. He stated there is a ditch on Huckabee's property that Huckabee has filled with beer bottles. In rebuttal, Huckabee stated the beer bottles were stacked in the ditch to alleviate land erosion, and he would find another method of dealing with the erosion problem.

When asked on cross-examination if Hilton knew of any problems created by Huckabee's since it has been operating, Hilton stated that other than seeing cars in the parking lot of his restaurant that he believed belonged to patrons of Huckabee's, there have been no other problems. Vonzile Jordon testified that on one occasion she heard loud voices and cursing coming from the proposed location. Other than these isolated incidents, no Protestants or Respondents had any complaints of Huckabee's since the business's opening date. At least one Protestant was not aware that Huckabee's allowed persons of legal age to consume alcohol at the proposed location. FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

• Notice of the time, date, place and subject matter of the hearing was given to all

the parties in a timely manner.

• The Petitioner, Huckabee's, through its owner, Donnie Huckabee, is seeking an

on-premises beer and wine permit for the establishment located at Angelus Road and Highway 109, Ruby, South Carolina.

• The Petitioner has no criminal record and is of sufficient moral character to

receive a beer and wine permit.

• The Petitioner is a legal resident of the United States, has maintained his principal

place of abode in South Carolina for at least thirty days before the date of the application for the permit, is over twenty-one (21) years of age, and has not had a permit revoked within the two (2) years preceding the date of the filing of this application.

• Notice of the application has appeared at least once a week for three (3)

consecutive weeks in The Cheraw Chronicle, a newspaper of general circulation in the local area where the applicant proposes to engage in business, and notice was posted at the proposed location for fifteen days.

• The proposed location is approximately two-tenths (2/10) of one mile away from

the White Oak Presbyterian Church.

• The issuance of the permit is being contested by Protestants and Reverend

Bowling Yates, III.

• In the Agency Transmittal that was filed with the ALJD on April 3, 2001, the

Department stated that it was denying Petitioner's application because of public protest by concerned citizens. Furthermore, the Department stated that, but for the question being raised by Protestants over the suitability of the location, the Department would have issued the permit. The Department does not oppose Petitioner's application and would have issued the permit but for the protest.

• Since January of 2001, Huckabee's has been operating and has allowed patrons to

bring their own alcohol and consume the alcohol at the proposed location.

• Reverend Yates is concerned that church services may be disturbed by activities

of the proposed location, however, Yates stated on cross-examination that the church has had no problems with disturbances by Huckabee's since it has opened.

• The Protestants' arguments appear to be based on a sincere concern for their

community. However, though the evidence offered raises "potential" concerns that this business would change the integrity of the vicinity or create an overall adverse impact on the community, the evidence did not substantiate the Protestant's concerns in this matter. In order to deny this permit direct evidence of an adverse impact on the community is necessary.

• I find that the evidence did not establish that the granting of the permit for this

location would have an adverse impact on the community.

STIPULATIONS

The Petitioner stipulated at the hearing that he would abide by the following restrictions if granted a permit and license:

• The hours of operation will commence at 3:00 p.m. and conclude by 11:00 p.m. or

midnight.

• The proposed location will not open on Sundays.
• The existing security lights will be maintained in operating order.
• Petitioner will have no bands or outside entertainment at the location.
• There will be no loitering outside the building.
• No music will be heard outside the building.
• Operation of the proposed location will not disturb the peace and tranquility of the

neighborhood.

• Petitioner will maintain both restrooms in operating order.
• The beer bottles located in the ditch of the proposed location will be replaced with

an appropriate means of preventing erosion of the land.

CONCLUSIONS OF LAW

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

• 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.

• S.C. Code Ann. § 61-4-525 (Supp. 2000) grants to the Administrative Law Judge

Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

• S.C. Code Ann.§ 61-4-520 (Supp. 2000) sets forth the requirements for

the issuance of a beer and wine permit which provides in part:

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

1. The applicant, any partner or 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 Sate for at least thirty days before the date of application, and has maintained his principal place of abode in South Carolina 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 the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

• The applicant, within two years before the date of application, has not had revoked a beer or a 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.

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.

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

4. The applicant meets all the statutory requirements set forth above and has made an adequate showing on each of the above grounds for issuance of the permit.

5. Although "proper location" is not statutorily defined, broad discretion is vested in the Division 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).

6. As a 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 Commission, 281 S.C. 566, 316 S.E. 2d 705 (S.C. Ct. App. 1984).

7. 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. 335 (1985).

8. S.C. Code Ann § 61-6-120 (Supp. 2000) states that the Department shall not issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.

• 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 or license is not 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).

10. Permits and licenses issued by the State for 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. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

• It is concluded that the applicant meets all of the statutory requirements for

holding a retail beer and wine permit; therefore, the proposed location is a proper one for granting the beer and wine permit subject to the applicant abiding by the conditions set forth below which are intended to alleviate concerns of the Protestants and Reverend Yates. There have been no significant problems in the area due to the opening of Huckabee's. If that changes after the Petitioner receives his permit or license, the proposed location would no longer be suitable and an action could be properly brought against Petitioner to revoke the Petitioner's permit or license.

This tribunal is aware of the concerns of the citizens in the community. However, there is not sufficient evidence to deny Petitioner's application for an on-premises beer and wine permit.ORDER

Based upon the Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED

that the application of Donnie Huckabee, d/b/a Huckabee's for an on-premises beer and wine permit at Angelus Road and Highway 109, Ruby, South Carolina is granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to strictly adhere to the above stipulations and the restrictions that are set forth below:

• The Petitioner or its employees shall maintain proper lighting around the proposed

location to discourage criminal activity. The Petitioner shall insure that the lights do not reflect or shine upon the local residences.

• The Petitioner and its employees shall prohibit loitering and the consumption of

alcohol by the patrons/customers in the parking lot area of the proposed location. Consumption of alcohol is restricted to the inside of the building.

3. Alcoholic beverages shall not be sold at the location any earlier than 3:00 p.m on any day of operation. The sale of alcoholic beverages shall conclude no later than 11:00 p.m., and business hours shall conclude no later than midnight.

• The proposed location shall not operate on Sundays.

5. The Petitioner shall not allow music to be played that can be heard outside the location. There shall be no live bands performing at the proposed location.

• There shall be no outside entertainment at the location.

• Parking is restricted to the parking lot of the proposed location.
• The Petitioner shall maintain both restrooms in operating order.

• The beer bottles in the ditch of the proposed location shall be replaced with an

appropriate means of preventing land erosion.

• Operation of the proposed location will not disturb the peace and tranquility of the

neighborhood.

IT IS FURTHER ORDERED that a violation of any one of the above conditions or stipulations is 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 the permit upon payment of the required fees and costs by the applicants.

AND IT IS SO ORDERED.

__________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

July 19, 2001

Columbia, South Carolina.