SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2001) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2001) upon filing of an application by Petitioner Marian Basden d/b/a North 21 General Merchandise ("Petitioner") for an on-premise beer and wine permit for a location at 6216 North Main Street, Columbia, South Carolina. Upon receipt of a number 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 February 25, 2002, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants were Charles Fogle, Anthony Moultrie, Lt. K.J. Looney, Paul Wade, Doris Caldwell, Earl Reuben, and Emily Cooper. Marian Basden testified in support of her application. Upon review of the relevant and probative evidence and applicable law, the application for a renewal of an on-premise beer and wine permit is granted, provided that the Petitioner complies with certain restrictions contained herein.

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 the Department.
• The Petitioner seeks an on-premises beer and wine permit for North 21 General Merchandise, 6216 North Main Street, Columbia, South Carolina ("proposed location" or "North 21"). The proposed location is situated on a major thoroughfare running through the city of Columbia, on the corner of Frye Road and North Main Street, in the Eau Claire community. Behind and on the sides of the proposed location is a fence, which nearly encircles the building from street to street. The effect of the fence is to create a "yard" for the location, which is primarily used for parking for North 21and an adjacent ABC store. In the area of the proposed location are several businesses, including a grocery store owned by Protestant Charles Fogle and a produce stand owned by Protestant Anthony Moultrie. In addition, a church and some residences are located within one-half mile.
• Prior to April 24, 2001, the Petitioner possessed an on-premises beer and wine permit for the proposed location. In her operation, the Petitioner permitted her patrons to purchase beer and wine inside of the building and take it outside into the "yard." At any given time, forty to fifty patrons of North 21 could be in the yard drinking beer or wine. As a result, the proposed location was the site of scores of police calls, prostitution, drug-dealing, and violent crimes, including a homicide.
• In February 2001, Administrative Law Judge Carolyn C. Matthews conducted a contested case hearing regarding the Department's denial of the Petitioner's application for renewal of her on-premises beer and wine permit. By order dated April 24, 2001, Judge Matthews denied the Petitioner's application, concluding that "the location is not proper for the grant of [such a] permit]."
• After the hearing but prior to April 24, 2001, the date she lost her on-premises permit, the Petitioner ceased allowing patrons of North 21 to take beer and wine outside of the building. The Petitioner had no problems persuading her patrons to comply with the ban on beer and wine outside of the building.
• Between April 24, 2001 and July 12, 2001, the Petitioner could not and did not sell beer or wine for either on-premises or off-premises consumption.
• On July 12, 2001, the Petitioner received an off-premises beer and wine permit. Since that time, the Petitioner has sold beer and wine for off-premises consumption. Three signs are posted on the property prohibiting loitering in the parking lot and drinking on the premises. The Petitioner has had no problems eliciting the compliance of her patrons with these prohibitions.
• If granted an on-premises permit, the Petitioner will continue to ban all consumption of beer or wine outside of the building, as well as continue to ban loitering outside of the building. She has received no complaints from neighbors or law enforcement since the date of the February 2001 hearing.
• K.J. Looney, a lieutenant with the City of Columbia Police Department, testified in opposition to the issuance of the on-premises beer and wine permit. According to Lt. Looney, the City of Columbia Police Department received 99 calls regarding North 21 in the year preceding the denial of the Petitioner's on-premises license. Numerous arrests were made in the yard of the premises, including arrests for prostitution, drug-dealing, public urination and defecation, begging, and fighting. In addition, a homicide occurred in the yard of the proposed location during that time. Because the Petitioner could not control her crowd during the period for which she possessed an on-premises license, Lt. Looney does not believe she will be able to control her crowd if she were granted another. However, Lt. Looney admits that, since the February 2001 hearing, the Police Department has responded to only four calls to the location.
• Anthony Moultrie, the owner of a business located behind the proposed location at 1510 Frye Road, also testified in opposition to the issuance of the permit. Moultrie has run the business for five years and witnessed the many fights, the drug-use, and prostitution that occurred on the premises of the proposed location. Since the Petitioner lost her license, however, those problems have cleared up. However, even without an on-premises license, Moultrie must pick up trash blowing through the fence separating his property from that of the proposed location everyday. Moultrie believes that all of the problems associated with North 21 in the past will return if the Petitioner is granted another license.
• Charles Fogle, owner of the Piggly Wiggly grocery store located across North Main Street from the proposed location, also testified in opposition to the issuance of an on-premises license. According to Fogle, prior to the denial of the Petitioner's on-premises permit, there could be forty or fifty people in North 21's parking lot drinking and hanging out. Prostitutes and drug-dealers hung around. Fogle's concern is that the problems will return if the Petitioner is granted an on-premises permit. However, Fogle admitted he has seen no one drinking in the parking lot, nor any prostitutes, since March 2001. Fogle has no problems with any activities occurring inside North 21's building.
• Paul Wade, a member of the Concerned Citizens Club, lives within five miles of the proposed location. In the past, the club was detrimental, but the problem has cleared up. If an on-premises permit is granted, Wade's concern is that a patron will become intoxicated at the proposed location, leave that location in an automobile, and cause a wreck that could kill someone.
• Doris Caldwell also testified in opposition of the permit. Caldwell is a senior and would like to live in peace. Caldwell and her husband could see the prostitutes in the parking lot of the proposed location, attempting to flag down motorists. People would drink on the street and walk out into traffic. Caldwell wants the Petitioner to go somewhere else.
• Earl Reuben, a former school teacher, testified in opposition of the permit. Reuben loves the Petitioner and all of her patrons; however, he believes it impossible for the Petitioner or anyone else to control those people when they are drunk or half-drunk. In the past, patrons of the Petitioner would urinate in his yard, stomp on his flowers, and stand on his porch. In the past year, however, Reuben has had no problems except the occasional person walking down the street while high. The problem with the Petitioner's place is that they did their drinking outside.
• Emily Cooper also testified in opposition to the issuance of the permit. Although Cooper commended the Petitioner for her efforts to clean up the proposed location after losing her permit, Cooper is afraid that the same old problems will arise if the Petitioner is granted another. Any time thirty to forty men are drinking and loitering in a place, trouble may erupt. Cooper's concern is that the Petitioner cannot control her crowd.
• Freddy Taylor, a citizen who lives two blocks from the proposed location, believes that all of the old problems will come back if she gets her license. Taylor does not believe that the relatively trouble-free past year is indicative of how things will be run if the Petitioner gets a new license.
• Although the evidence offered raises significant concerns that this business has historically created an overall adverse impact on the surrounding community, the evidence does not establish that granting the permit to Petitioner for this location in these circumstances will have an overall adverse impact on the community. If that change occurs after the Petitioner receives the on-premises 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 permit.

CONCLUSIONS OF LAW

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

• Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001), S.C. Code Ann. § 1-23-600(B) (Supp. 2001) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2001) the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

• S.C. Code Ann. § 61-4-520 (Supp. 2001), 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. ***

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.

***

• The Petitioner, Marian Basden, has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001), concerning residency, age, moral requirements, criminal convictions, reputation for peace and good order in its community, 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.
• 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. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). The proximity of a location to a church, school or residences is a proper ground by itself upon 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).
• In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
• 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 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. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
• I conclude that the Petitioner has met her burden of proof in showing that it meets all of the statutory requirements for holding a retail beer and wine permit at the proposed location. I further conclude that the proposed location is a proper one for granting the permit, subject to the following restrictions which are intended to alleviate the concerns of the Protestants and which must be stipulated to:

RESTRICTIONS

• The Petitioner and her employees shall maintain proper lighting around the proposed location.
• The Petitioner and her employees shall continue to prohibit loitering and the consumption of beer and wine by patrons/customers in the parking lot area of the proposed location.
• The Petitioner and her employees shall cease serving alcoholic beverages to its customers, patrons, guests and employees not later than 10:00 p.m. each day of operation.
• 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.
• 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. Every night after closing the establishment, the Petitioner and its employees will pick up all trash remaining in and around the premises.
• The Petitioner shall abide by a strict "no weapons allowed" rule prohibiting any customer from carrying a weapon onto the premises of the proposed location.

7. The Petitioner shall post a sign on the exterior of the building and on the interior in the building prohibiting any weapons on the premises of the proposed location.

• The Petitioner shall employ a uniformed security person (not necessarily a constable) to patrol the exterior premises of the proposed location from 5:00 p.m. until one hour after closing, or 11:00 p.m. Such security personnel shall be instructed to prevent patrons/customers from drinking beer and wine in the parking lot and to maintain a presence of order. Such security personnel shall be equipped with a radio or cell phone on his or her person to enable him or her to contact law enforcement as necessary.
• 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 for the proposed location, known as North 21 General Merchandise, 6216 North Main Street, Columbia, 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 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

ADMINISTRATIVE LAW JUDGE

February 27, 2002

Columbia, South Carolina