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). Wilford Underwood, Jr., d/b/a Flamingo Restaurant (Petitioner) filed an application for an on-premise beer and wine permit for the premises located at 122 Millwood Drive, Spartanburg County, South Carolina (location). The application was objected to by the Spartanburg County Sheriff's Department (Protestant) based upon the moral character of Petitioner. The South Carolina Department of Revenue (Department) found that the Petitioner met all the statutory requirements.

A contested case hearing was held on Wednesday, June 13, 2001, at the offices of the Administrative Law Judge Division (Division), Columbia, South Carolina. The issues considered were the suitability of the proposed location and the moral character of the Petitioner.

Appearing at the hearing and offering testimony was the Petitioner, as well as Dep. Sheriff John Hudson of the Spartanburg County, South Carolina Sheriff's Department.

The application request is granted with restrictions.

Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of the record. No exhibits were placed into the record at the hearing.

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 Petitioner and the Protestant, I make the following Findings of Fact by a preponderance of the evidence:

1. The Division has personal and subject matter jurisdiction.

• Notice of the date, time, place and subject matter of the hearing was timely given to the Petitioner and the Protestant.
• The Petitioner, Wilford Underwood, Jr., seeks an on-premise beer and wine permit for a restaurant known as "Flamingo Restaurant," located at 122 Millwood Drive, Spartanburg, Spartanburg County, South Carolina. The permit is to be issued in the name of the Petitioner.
• Petitioner has been operating a restaurant at the location known as "Flamingo Restaurant" for the last year and two months.
• Petitioner serves fried chicken, hamburgers, fish, shrimp, ribs and other items at his restaurant. Food will be available to customers during all hours the restaurant is open for business.
• Petitioner was born on August 2, 1944, and is over the age of twenty-one years. He has lived in Spartanburg County, South Carolina almost all his life. He is a resident and citizen of that county and has been for the last twenty years.
• Petitioner is single and has owned his own home located at 1650 Union Street, Spartanburg, South Carolina for more than twenty years.
• Petitioner has been employed for thirty-five to forty years as a mason with various construction firms in Spartanburg County. For the last four to five years he has been employed as a mason with T & N Construction Company, Spartanburg, South Carolina.
• Petitioner was raised in the Community Baptist Church of Spartanburg County and has been a member of that church for the last thirty-five years.
• Petitioner has never held an ABC license or permit in his own name and has never had a license or permit revoked.
• More than twenty years ago Petitioner was arrested for selling a beer to a person after 12:00 midnight on Saturday (approximately 12:05 a.m. on Sunday), in violation of the ABC laws in this state. Also, during the year 1992, a warrant was issued for his arrest on charges of assault and battery and malicious injury to personal property. The charges, however, were dismissed. Petitioner explained that he was home one evening when a lady created a disturbance outside. After Petitioner asked her to leave his property, the lady became angry and drove her vehicle against one of Petitioner's legs, wedging it against a gate. He took the chain from the gate and hit the hood of her car when she would not back off. He called for police assistance. She left before the officers arrived. She subsequently took out the warrant. Petitioner, upon learning of the warrant, went to the magistrate's office. After appearing several times at General Sessions court, he was told by the Solicitor's office that he did not need to return. The charge apparently was dismissed for lack of prosecution or for insufficient evidence.
• I find that Mr. Underwood is of good moral character and has not been convicted of a crime for more than ten years.
• Notice of this application has appeared at least once a week for three consecutive weeks in the Spartanburg Herald-Journal, a newspaper of general circulation in the local area where the Petitioner operates his business.
• Notice of the application has been given by displaying a sign for a minimum of fifteen days at the site of the location.
• The location is in a mixed use area of Spartanburg County, outside the city limits of Spartanburg, South Carolina. There are several residences and wooded areas in the immediate vicinity of the location.
• There are no churches, schools, or playgrounds within five hundred feet of the location.
• The location has parking spaces for approximately thirty vehicles.
• Petitioner will be responsible for the daily operations of the business. The restaurant will not be open on Sundays, Mondays, Tuesdays, or Wednesdays. Petitioner intends to open the business between the hours of 7:00 p.m. and 1:00 a.m. on Thursdays and Fridays and between the hours of 5:00 p.m. and midnight on Saturdays.
• Petitioner has several relatives and friends who will assist him in operating the restaurant.
• Petitioner leases the location pursuant to a written lease agreement from Loyd Trent, Jr. for the sum of Five Hundred Dollars ($500.00) per month.
• Petitioner does not intend to have live bands at the location. He currently has a juke box and one pool table.
• There are two pole-mounted security lights and additional lights mounted on each corner of the building at the location.
• The Spartanburg County Sheriff's Department protested the application. Dep. Sheriff John Hudson testified at the hearing. He has been with the Sheriff's Department for the last seven-and-one-half years.
• Deputy Sheriff Hudson stated that the Sheriff's Department has worked hard to "clean up" this area of drugs and crime and wants to keep it a safe neighborhood for the citizens who live there. He further testified that there are several locations nearby where fights and shootings occur, as evidenced by shell casings left on the ground. The Sheriff's Department does not want this location to become a "problem" too.
• Dep. Sheriff Hudson further testified that he has no record of any incidents at the location since it has been operated by Petitioner. Dep. Sheriff Hudson spoke of the prior arrest of Petitioner on an ABC violation.
• I find that the location is suitable for the area, subject to Petitioner signing an agreement with Respondent to close the restaurant at midnight each evening it is open, to maintain adequate lighting outside, and to ensure loitering does not occur outside the location.
• Petitioner is reminded that the location is to be operated as a restaurant, not a bar or lounge. It is not intended that by the granting of this permit there will be excessive usage of beer and/or wine consumption at this location which will require additional law enforcement than presently is needed at the restaurant.

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.

• The sale of beer and wine is a lawful enterprise in South Carolina, as regulated by the State.
• S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for the issuance of a beer and wine permit, provides:

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 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 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. 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 or 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.

• Petitioner has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2000), concerning his residency and age, as well as the publication and notice requirements.
• 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. In this case, I find that Petitioner is credible and has been gainfully employed all his working life. The establishment of this restaurant is a second occupation for Petitioner, which he hopes to operate after his retirement from the masonry business.
• 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 judge 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).
• 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 based on opinions and conclusions or is 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.
• Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are 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).
• In this case, the testimony of Dep. Sheriff John Hudson about the efforts of the Sheriff's Department to police this neighborhood and make it safe for its citizens to live in is honorable. It is the responsibility of the Petitioner to assist in that effort and ensure that his restaurant does not create problems for law enforcement. I, therefore, conclude that restrictions must be placed on the permit.
• A violation of any of the restrictions or of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the permit pursuant to S.C. Code Ann. §§ 61-4-580 and 61-6-1830 (Supp. 2000).
• 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. I conclude that none is owed.
• I conclude that the Petitioner has met his burden of proof in showing that he meets all of the statutory requirements for holding a beer and wine permit at the location. I further conclude that the proposed location is a proper one for granting the permit, subject to the following restrictions, which must be stipulated to:

• The Petitioner and/or his employees shall maintain proper lighting on the exterior and outside of the proposed location to discourage criminal activity. The Petitioner, however, shall insure that the lights do not reflect or shine upon surrounding residences.
• The Petitioner and/or his employees shall prohibit loitering, littering, and the consumption of beer or wine by his customers in the parking lot area of the proposed location.
• The Petitioner and/or his employees shall permit parking only in the parking lot at the location. No parking shall be permitted in the roadway or right of way.
• The hours of business at the location shall be from 7:00 p.m. until midnight on Thursdays and Fridays and from 5:00 p.m. until midnight on Saturdays.
• Live music will not be permitted at the location. Any other music must be kept to a minimum so as not to disturb any neighbors.

• Furthermore, S.C. Code Ann. § 1-23-370(c) (1986 & Supp. 2000) provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Petitioner's application for an on-premise beer and wine permit for the location at 122 Millwood Drive, Spartanburg County, South Carolina, is granted upon payment of all fees.

IT IS FURTHER ORDERED that the permit and license shall only be issued by the Department upon the Petitioner signing a written statement to be filed with the Department to adhere to the restrictions set forth above.

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

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

June 14, 2001

Columbia, South Carolina