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) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2000) upon filing of an application by Petitioner, Lillie M. Pringle, d/b/a Chit Chat's Lounge and Grill ("Petitioner" or "Pringle" or "Chit Chat's") for an on-premise beer and wine permit and sale and consumption ("mini-bottle") license for a location at 5800 Catchall Road, Sumter, South Carolina. Upon receipt of written protests to the application, the South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing. After timely notice to the parties and Protestants, a contested case hearing was held on August 15, 2001, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants were James H. Hill and Sylvia Loney. Lillie Mae Pringle, Lewis Davis, Jerone Gettings, and Wesley Kind testified in support of the application. Upon review of the relevant and probative evidence and applicable law, the application for an on-premise beer and wine permit and business mini-bottle license is granted.

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 and place of the hearing was given to the Petitioner,

Protestants, and Department.

2. Lillie Mae Pringle, operator of Chit Chat's, seeks an on-premises beer and wine

permit and mini-bottle license for the proposed location of 5800 Catchall Road, Sumter, South Carolina. 3. The Department moved to be excused from appearing at the hearing on the

ground that it would have granted the permit and license but for the unanswered question of the suitability of the proposed location. Said motion was granted.

• The Department does not object to the issuance of the beer and wine permit nor to

the issuance of the mini-bottle license.

• Pringle intends to operate Chit Chat's as a restaurant and nightclub.

• Chit Chat's Lounge and Grill is comprised by two buildings. The grill/restaurant

is in a brick building that connects to a modular unit which houses the lounge/nightclub area. The two buildings connect by a locking door.7. Chit Chat's has been operating at the proposed location as a restaurant since

November 2000. The lounge of Chit Chat's has not been operating. The proposed location does not currently possess an alcohol license.

8. Pringle had no ownership interest in the proposed location prior to November

2000.

• The proposed location was operated as a nightclub by a prior proprietor beginning

in 1997. That proprietor has since vacated the area and has no further involvement with the proposed location.

• There are no schools, churches, or playgrounds located within five hundred (500)

feet of this location.

11. James Hill resides on Catchall Road and within close proximity to the proposed

location. Hill testified on behalf of the Protestants and stated several of their concerns. He stated that when the proposed location was operated by a different proprietor, the community had problems with loud music being played, properties being littered upon, and violent, illegal behavior. On several occasions prior to Pringle's involvement with the establishment, the sheriff's office responded to calls at the proposed location. The Protestants are concerned that regardless of the business's operator, the same problems may occur. Hill, on cross-examination, stated that he was not aware of such problems at the proposed location since Pringle has opened the business as a restaurant. However, he feels there has not been problems because Chit Chat's has not had a license to sale alcohol during the stint of Pringle's involvement with the proposed location.

12. Sylvia Loney is a senior citizen of Sumter and also resides on Catchall Road.

Loney testified to the history of the proposed location. She stated there were drive-by shootings and car racing on Catchall Road when the prior nightclub was operated under different management. Loney feels if alcohol of any kind is sold at the location, similar problems will arise.

• Lillie Mae Pringle, operator of Chit Chat's, testified that she intends to cater to

individuals of twenty-five years of age and older. She plans to have jazz and blues music played at the lounge. The restaurant portion of Chit Chat's offers a full menu. Pringle testified that since November 2000, the business has hosted a retirement party, high school graduation parties, birthday parties and an anniversary celebration. She testified she has had no complaints from residents regarding the operation of the business. She stated that she has not had to call the sheriff's department for problems at the location.

Pringle testified that she will prohibit those patrons who cause problems from the proposed location. She stated her willingness to work with neighbors regarding any issues with excessive noise or litter.

• The daily operations of Chit Chat's lounge will be managed by Wesley Kind.

Kind testified at the hearing that there has been approximately fifteen thousand ($15,000.00) dollars spent on renovations at the proposed location since the prior operator vacated the business. Kind stated that the lounge would play no "hip hop" or "rap" music which tends to attract a younger clientele.

• Lewis Davis of Sumter, South Carolina testified that his step-son was the prior

operator of the proposed location. Davis stated that the problems connected with that business were due to his step-son's lack of management of the business. His step-son is no longer involved with the proposed location, and Davis is unaware of his whereabouts. Davis knows Wesley Kind personally and believes Kind will be a responsible manager and have control over the activities at the proposed location.

• Also testifying in favor of granting the beer and wine permit and mini-bottle

license was Jerone Gettings. Gettings is a local businessman and was employed by the South Carolina Law Enforcement Division for fourteen years. Gettings testified that in the past Wesley Kind was Gettings campaign manager for a local political office. He feels Kind is a respectable citizen and would not allow illegal activity to occur at the proposed location.

• Although there have been numerous problems with the proposed location in the

past, those problems were likely due to the operator of the business. Pringle is a different operator and seems to have every intention of operating a decent, law abiding business. There have been substantial renovations to the business that create a different atmosphere than the proposed location had with the prior operator.

• Though the evidence offered raises potential concerns that this business would

create an overall adverse impact on the community, the evidence did not establish that the granting of the permit or license for this location will have an overall adverse impact on the community. If that change occurs after the Petitioner receives the beer and wine permit and mini-bottle license, the proposed location would no longer be suitable, and the Department could properly bring an action to revoke the Petitioner's permit and license.

CONCLUSIONS OF LAW

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

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-600(B) (Supp. 2000) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2000) the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. S.C. Code Ann. § 61-4-520 (Supp. 2000), 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.

3. 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.

4. 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.

5. A license for the sale and consumption of alcoholic beverages must not be granted unless the location will be operated either as a bona fide non-profit organization or the licensee intends to conduct a bona fide business engaged primarily and substantially in food preparation and service or the furnishing of lodging.

6. 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 Petitioner 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. Regs. § 7-19 defines "restaurants" as follows:

A. Any business establishment that applies for or holds a sale and consumption license pursuant to § 61-5-20 (4) (now §§ 61-6-20, 61-6-1600, 61-6-1610, 61-6-1620, 61-6-2200, 61-6-2210, 61-6-4020 and 61-6-4710) of the Code and is not engaged in the furnishing of lodging, must:

1. Be equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals; and

2. Have readily available to its guests and patrons either "menus" with the listings of the various meals offered for service or a listing of available meals and foods, posted in a conspicuous place readily discernible by the guest or patrons; and

3. Prepare for service to customers hot meals at least once each day the business establishment chooses to be open.

4. If such establishment advertises, a substantial portion of its advertising must be devoted to its food services.

This court finds that the Petitioner has complied with the provisions of this regulation and § 61-6-20 (Supp. 2000).

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. The Petitioner has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2000), concerning residency, age, moral requirements, criminal convictions, reputation for peace and good order in its community, 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. 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 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).

14. 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).

15. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption ("mini-bottle") license as a restaurant at the location. I further conclude that the proposed location is a proper one for granting the permit and licenses, subject to the following restrictions which are intended to alleviate the concerns of the Protestants and which must be stipulated to:

RESTRICTIONS

1. The Petitioner and its employees shall maintain proper lighting around the proposed location. The Petitioner shall not allow lights to reflect upon the local residences.

2. The Petitioner and its employees shall prohibit loitering and the consumption of beer, wine or liquor by the patrons/customers in the parking lot area of the proposed location.

3. The Petitioner and its employees shall cease serving alcoholic beverages, to its customers, patrons, guests and employees at the proposed location not later than 10:00 p.m. on Monday through Thursday and not later than 11:00 p.m. on Friday and Saturday. Alcoholic beverages shall not be sold on Sunday at the proposed location.

• The Petitioner shall provide a garbage receptacle in the front of the proposed location

and a garbage receptacle in the rear of the proposed location. Each receptacle shall be enclosed by a fence obstructing local residents' view of the receptacles.

• The Petitioner shall post a sign in the restaurant and a sign in the lounge encouraging

patrons to use the outside receptacles when discarding litter outside the building.

• The Petitioner shall abide by a strict no weapons allowed rule which prohibits any

customer from carrying a weapon onto the premises of the proposed location.

7. The Petitioner shall post a sign in the restaurant and a sign in the lounge prohibiting

any weapons on the premises of the proposed location.

• The Petitioner shall not allow music to be played that can be heard beyond the

property boundaries of the proposed location.

• Parking is restricted to the parking lot of the proposed location.
• Operation of the proposed location shall not disturb the peace and tranquility of the

neighborhood.

These conditions must be complied with strictly and continuously.

ORDER

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

ORDERED that Petitioner's application for an on-premises beer and wine permit and a business sale and consumption ("mini-bottle") license as a restaurant for its location at 611 E. Maynard Street, Pageland, South Carolina is granted upon payment of all fees and statutory requirements.

IT IS FURTHER ORDERED that the permit and license shall only be issued by the Department upon the Petitioner's signing a written agreement 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 conditions 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.

___________________________________

C. DUKES SCOTT

September ___, 2001 ADMINISTRATIVE LAW JUDGE

Columbia, South Carolina