SC Administrative Law Court Decisions

STATEMENT OF THE CASE

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 Travelers Rest Veterans of Foreign Wars ("VFW") for an on-premise beer and wine permit and sale and consumption ("mini-bottle") license for a location at 238 East Bowers Road, Travelers Rest, 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 May 17, 2002, at the Greenville County Courthouse in Greenville, South Carolina. Testifying on behalf of the Protestants were Dr. Stan Craig, Vernon Thomas, Bobby Hough, Investigator Jonathan Garrett, Deborah Batson, Cecil McGregor, Roscoe Pittman, Laverne McGregor, Harold L. Jacobs, Robert Coleman, Rick Moody, R.H. Patterson, Sr., James R. Robertson, Don Dempsey, and Mike Griffin. James Seville and William E. Terry testified in support of the applications. Upon review of the relevant and probative evidence and applicable law, the applications for an on-premise beer and wine permit and mini-bottle license are denied.

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, Department and the Protestants.
• The Petitioner seeks an on-premises beer and wine permit and mini-bottle license for the proposed location of 238 East Bowers Road, Travelers Rest, South Carolina. The VFW purchased the property located at 238 East Bowers Road with the intent to construct a permanent VFW post. Currently, the VFW is leasing a building located on Highway 25 approximately one mile north of the proposed location. Since the VFW began operating its post at the current location in 1996, the Sheriff's Department has responded to twenty-nine calls; fourteen of those calls were false burglar alarms. There was no evidence that any member of the post was involved in any of the incidents resulting in one of the twenty-nine calls.
• The VFW is a non-profit organization that operates as a private club. The club serves alcohol only to its members and their guests. It intends to operate Thursday through Saturday, 4 p.m. until midnight, and on Sunday, from noon until 8:00 p.m. However, the post is open at other times during which alcoholic beverages would not be sold.
• 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 objects neither to the issuance of the beer and wine permit nor to the issuance of the mini-bottle license.
• The proposed location is located on East Bowers Road just off of Highway 25, a four-lane, divided highway running through the town of Travelers Rest. Highway 25 is the main route from Greenville to North Carolina and is a heavily traveled road. The speed limit on the stretch of Highway 25 closest to East Bowers Road is 55 miles an hour.

• East Bowers Road winds west off of Highway 25 and is accessible to northbound traffic via a "cut-through" that traverses the grassy median. The land on the west side of Highway 25 in the area of East Bowers Road is elevated such that southbound traffic is difficult to see from the intersection of East Bowers Road and Highway 25, creating a dangerous situation.
• Along the one mile stretch of East Bowers Road closest to the proposed location are approximately nineteen homes. At least nineteen children reside on that stretch of East Bowers Road. Many of the residents of East Bowers Road, including the children, use the road for jogging, walking, and bike-riding. In addition, on the vacant lot directly across from the proposed location on East Bowers Road, many children play, riding dirt-bikes and ATVs.
• Many businesses are located on both sides of Highway 25 in the immediate area of East Bowers Road. However, the closest businesses selling alcoholic beverages is located at least a mile from the proposed location. South of the proposed location on Highway 25 is a Mexican restaurant licensed to sell beer, wine, and liquor. Across Highway 25 from the Mexican restaurant is gas station licensed to sell beer and wine. North of the proposed location is another gas station licensed to sell beer and wine.
• If the requested license and permit were issued, the Petitioner would construct an attractive building and landscape the property in such a way as to minimize its presence on East Bowers Road. The Petitioner intends to be a good neighbor to the people of East Bowers Road.
• There are no schools, churches, or playgrounds located within five hundred (500) feet of this location.

The evidence offered raises significant concerns that this business will create an overall adverse impact on the community.

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 over this matter.
• S.C. Code Ann. § 61-4-520, 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:

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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.

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

• S.C. Code Ann. § 61-6-910, which sets forth certain requirements for the issuance of a mini-bottle license, provides, in relevant part:

The Department must refuse to issue any license...if the department is of the opinion that:

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• the store or place of business to be occupied is not a suitable place;

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S.C. Code Ann. § 61-6-910 (Supp. 2001).

• The Petitioner or its principal has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520, 61-6-110, 61-6-180 (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.
• S.C. Code Ann. § 61-6-1820 (Supp. 2001), which sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license, provides that the Department may issue a license of this article upon finding that the applicant is a bona fide nonprofit organization.
• S. C. Code Ann. § 61-6-120 (Supp. 2001) 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.
• 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. 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).
• 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).
• The nature and operation of the proposed business and its impact on the community within which it is to be located are important considerations in determining suitability of the location. See Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). It is inescapable that the nature and operation of a private club with an on-premises permit and mini-bottle license is different from and less conducive to a residential area than is a restaurant with the same permit and license. Unlike the Mexican restaurant, which serves a full menu, the Petitioner's post is a non-profit organization operating as a private club, required to serve no food whatsoever. In short, it is a bar, deriving all of its revenue from the sale of alcoholic beverages. Further, not only is the proposed location located in a residential area filled with children, it is located just off a busy and dangerous highway with a speed limit of 55 miles an hour. For the foregoing reasons, the nature of the proposed business activity also renders the proposed location unsuitable. Accordingly, Petitioner's applications for an on-premises beer and wine permit and mini-bottle license are denied.

ORDER

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

IT IS HEREBY ORDERED that the Petitioner's applications for an on-premises beer and wine permit and a sale and consumption ("mini-bottle") license for its location at 238 East Bowers Road, Travelers Rest, South Carolina are DENIED.

AND IT IS SO ORDERED.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

May 20, 2002

Columbia, South Carolina