SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-310 (Supp. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a contested case hearing. The Petitioner, Zack Cooper, d/b/a Zack's Shack, seeks an on-premises beer and wine permit for an establishment located at 1000 E. Main Street, Kingstree, South Carolina 29556.

Monica Murdaugh Nelson ("Protestant") protested the issuance of an on-premises beer and wine permit to the Petitioner for the proposed location. In the Agency Transmittal Form forwarded to the Administrative Law Judge Division ("ALJD") by the South Carolina Department of Revenue ("Department"), the ALJD was informed that the Protestant raised a question of suitability of the location. Department stated in the Agency Transmittal Form that but for this protest, the permit would have been issued by the Department to the Petitioner.

The Department filed a Motion to be Excused, stating that the Department would have granted the permit but for the protest of the application. This Motion was granted by Order dated May 24, 2001.

After timely notice to the parties and protestant, a hearing was held at the Administrative Law Judge Division ("ALJD") in Columbia, South Carolina on July 26, 2001.

FINDINGS OF FACT

Having carefully considered the testimony and arguments, and taking into account the credibility of the evidence, I find the following by a preponderance of the evidence:

1. Petitioner, Zack Cooper, d/b/a Zack's Shack, seeks an on-premises beer and wine permit for an establishment located at 1000 E. Main Street, Kingstree, South Carolina.

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

3. Petitioner operated a business at the same location of the proposed location in 1986 and possessed an alcohol license at that time. There were no protest or violations at the location with the former license.

4. Petitioner intends to operate the proposed location as a small restaurant/sports bar with full kitchen service.

5. The proposed days and hours of operation for the proposed location are 2:00 p.m. until 11:00 p.m. on Thursdays, Fridays and Saturdays.

• In the written protest of Monica Murdaugh Nelson filed with the Department and

forwarded to the ALJD, the Protestant stated that she objected to the issuance of the beer and wine permit at the proposed location because it is within close proximity to schools, churches and child care facilities. The Protestant noted that there are several children in the neighborhood of the proposed location.

• At the hearing, Protestant testified that she is concerned that Petitioner and his

son, who will be assisting in the management of the restaurant/bar, do not reside in Kingstree. She stated it would be difficult for Petitioner to supervise the activities at the restaurant/bar when he is not in town.

• Winfreid Murdaugh, Mayor Pro Temp of Kingstree, testified that since 1986 the

community where the proposed location is situated has changed. Murdaugh stated that there is an increasing problem with illegal drug distribution and use in the area and feels the proposed location may contribute to that problem. He also expressed concerns that Petitioner does not reside in the town of the proposed location.

• Testimony of Judith S. Murdaugh was also given at the hearing. Mrs. Murdaugh

harbored the same concerns as Nelson and Winfreid Murdaugh. However, on cross-examination, Mrs. Murdaugh testified that she was not aware that Petitioner would be present at the proposed location or would be managing the business himself.

• Petitioner owns several properties in the area of the proposed location. He owns

the laundry mat next door to the proposed location and the garage behind the laundry mat. Petitioner also owns two residential homes on a nearby street and other properties in Kingstree.

• Petitioner will be managing the proposed location and expects to be in Kingstree

at least four or five days a week.

• Petitioner will inspect photograph identification cards to ensure alcohol

consumption by patrons of twenty-one years of age or older.

• The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp.

2000) concerning the residency and age of the applicant are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

• The Petitioner is of sufficient moral character to receive a beer and wine permit.

• The proposed location is not unreasonably close to any church, school or

playground.

• The Department does not oppose Petitioner's application and would have issued

the permit but for the protest.

• I find that the evidence did not establish that granting the permit and license

for this location would have an adverse impact on the community. Therefore, the proposed location is suitable for the on-premise beer and wine permit.

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 ALJD to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the ALJD 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 an on-premise beer and wine permit.

4. In addition to the requirements set forth above, a license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2000) are met.

5. 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.E2d 118 (1981).

6. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the Petitioner and the proposed business location for a license or permit using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

7. 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 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).

8. 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 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).

• 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).

• The Petitioner will be at the business or within the town of Kingstree at least four or

five days a week. He should be able to provide adequate supervision of the proposed location's operations during these times.

• No evidence was presented to substantiate that the issuance of an on-premise beer

and wine permit to the proposed location would contribute to illegal drug use or any other criminal behavior.

12. The Petitioner meets the statutory requirements for holding a beer and wine permit at the proposed location provided Petitioner complies with the restrictions set forth below.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED that the Department shall continue processing Petitioner's application for an on-premise beer and wine permit for 1000 E. Main Street, Kingstree, South Carolina upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to strictly adhere to the following restrictions:

1. The Petitioner and/or his employees shall prohibit loitering and the consumption of beer or wine in the parking lot area of the proposed location.

2. The Petitioner will ensure that patrons park only in the designated parking lot for the proposed location and the Petitioner will limit the number of patrons in his location to the available parking in that lot.

• The Petitioner will provide adequate outside lighting to discourage criminal activity

at the proposed location. The Petitioner shall maintain adequate lighting without lights reflecting upon or shining on local residences.

4. The Petitioner will ensure that music played at the location will not be heard within the homes of the local residences.

• Alcohol shall not be sold at the proposed location later than 11:00 p.m.

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

IT IS FURTHER ORDERED that the Department of Revenue issue a beer and wine permit upon payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.

______________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

August 6, 2001

Columbia, South Carolina