ORDERS:
FINAL ORDER AND DECISION
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, Larry Lee Swinney, d/b/a New Town
Sports Bar & Grill ("Petitioner") for an on-premise beer and wine permit for a location at 602 Lockemy
Hwy., Dillon, South Carolina. Upon receipt of a written protest 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 September 12, 2001, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants
were the Reverend Hazel Wilson, Ms. Beulah Fowler, and Ms. Teresa Blue. Larry Lee Swinney is the
operator of New Town Sports Bar & Grill. Swinney 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 is granted subject to restrictions.
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,
Protestant, and Department.
2. Larry Lee Swinney, on behalf of New Town Sports Bar & Grill ("Grill"), seeks an on-premises beer
and wine permit for the proposed location of 602 Lockemy Hwy., Dillon, 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.
4. New Town Sports Bar & Grill is currently operating at the proposed location as a meeting place,
where patrons can play pool, chess, and checkers. Mr. Swinney currently rents the proposed location to
patrons, who are permitted to bring their own beer and wine.
5. The proposed location is situated on a major highway running through the town of Dillon. Although
several residences are nearby, testimony revealed that there are several churches and a school located
approximately one-quarter mile from the proposed location. There are two other establishments possessing
beer and wine permits located within that one-quarter mile radius. Both establishments are "after hours"
clubs.
6. Reverend Hazel Wilson, a resident of Roland, North Carolina and pastor of New Bethel Presbyterian
Church, located in Dillon approximately one-quarter mile from the proposed location, testified in opposition
of the issuance of a beer and wine permit. Rev. Wilson testified that she appeared on behalf of her
congregants and stated several of their concerns. Rev. Wilson is concerned about her congregants, many of
whom live in the area surrounding the proposed location. One of her congregants, a woman of 104 years of
age, lives next door to the proposed location. Rev. Wilson feels the entire community is concerned about
alcohol and drugs and protests another business operating with a beer and wine permit in the community.
Rev. Wilson also testified that her church had just purchased another bar in the area to shut it down. Rev.
Wilson is concerned that her congregants, adults and children alike, are and will continue to be disturbed by
patrons of the proposed location as they walk past the proposed location on their way to services at New
Bethel Presbyterian. Rev. Wilson then testified that several shootings and murders have occurred in the New
Town area. However, on cross examination, Rev. Wilson testified that she was aware of no specific incidents
relating to Mr. Swinney or the proposed location.
7. Beaulah Fowler, a resident of Dillon and a congregant of New Bethel Presbyterian Church, testified
that having a bar in the community is not a good thing for the community. Instead, Ms. Fowler wants
something positive for the children and elderly. On cross-examination, Ms. Fowler testified that she lives
less than one-half mile from the proposed location and has never heard music coming from it.
8. Teresa Blue, a resident of Dillon and a congregant of New Bethel Presbyterian Church, testified that
the community did not need a bar in a residential area because a lot of children and elderly live there. On
cross-examination, Ms. Blue testified that there were other commercial businesses in the area and that she had
never been disturbed by music coming from the proposed location.
9. Larry Lee Swinney, the owner/operator of the Grill, testified that he intends to operate a sports bar
where patrons can come and watch television and play pool, chess, or checkers. Swinney testified that he
would not have loud music that could be heard outside of the Grill and that there would be no outdoor
entertainment at the Grill. In addition, Swinney intends to hire a private security company to control possible
disturbances and to ensure the peace and tranquility of the neighbors. Swinney and his employees will clean
up any litter generated by his patrons each evening before going home. Swinney also testified that no
underaged individuals would be served alcohol by training his employees to require a picture identification of
a patron before serving him or her alcohol. Swinney intends to cease serving any obviously intoxicated
patron. Swinney will renovate the kitchen area of the Grill so that he can serve hotdogs, hamburgers, and
fried chicken. Swinney also testified that the proposed location has more than adequate parking. Finally,
Swinney testified that the Grill will open only on Thursdays, Fridays, and Saturdays, from 7 p.m. until
midnight.
10. Though the evidence offered raises "potential" concerns that this business could
create an overall adverse impact on the community, the evidence did not establish that the granting of the
permit 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, the proposed location would no longer be suitable and the
Department could properly bring an action to revoke the Petitioner's beer and wine permit.
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 relevant 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.
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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.
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3. The Petitioner and its agent, Larry Lee Swinney, have met the qualifications set forth in S.C. Code Ann. §
61-4-520 (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.
4. 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.
5. 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).
6. 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).
7. Permits issued by the State for the sale of 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. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22
(1943).
8. A violation 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 (Supp. 2000).
9. S.C. Code Ann. § 61-2-160 (Supp. 2000) prohibits the issuance, renewal or transfer of a permit under Title
61 if the applicant owes state or federal government delinquent taxes, penalties or interest.
10. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory
requirements for holding an on-premises 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:
RESTRICTIONS
1. The Petitioner and his employees shall maintain proper lighting around the proposed location.
2. The Petitioner and his employees shall prohibit loitering and the consumption of beer and wine by
the patrons/customers in the parking lot area of the proposed location.
3. The Petitioner shall ensure that adequate parking is available.
4. The Petitioner shall ensure that litter created by patrons/customers is picked up and disposed of
properly each night that the Grill is open for business.
5. As stipulated by Petitioner, the sale of beer and wine is limited to Thursdays, Fridays, and Saturdays,
between the hours of 7 p.m. and midnight.ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on-premises beer and wine permit for its location at 602
Lockemy Hwy., Dillon, South Carolina is granted upon payment of all fees and statutory requirements.
IT IS FURTHER ORDERED that the permit 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 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.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
September 13, 2001
Columbia, South Carolina |
