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 Brenda G. Williams, d/b/a Ravens Nest of Hospitality, for an on-premise beer and wine permit for a location at 940 Ravenwood Drive, 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 May 20, 2002, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants were Sheriff Tommy Mims, B.J. Russell, Raymond Ziecker, Danny Dowless, and James B. Gregory. Brenda Williams 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 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 for the proposed location at 940 Ravenwood Drive, Sumter, South Carolina. The parcel upon which the proposed location is situated comprises approximately 35 mostly wooded acres, bordered on one side by Ravenwood Drive. Ravenwood Drive is a rural residential area located just off of McCray's Mill Road, a main thoroughfare through Sumter County. At least sixteen families live between McCray's Mill Road and the proposed location on Ravenwood Drive. In addition, several families live past the proposed location on Ravenwood Drive. Many children live along Ravenwood Road and frequently bike and walk up and down the street.
• Petitioner, who together with her husband and another investor, purchased the 35 acre parcel upon which the proposed location was built in 1998. Since the construction of the building, Petitioner and her friends have used the building as a club, where people would gather to hold fish frys, barbeques, and other social activities. Currently, guests of the club are permitted to bring their own alcoholic beverages to consume on the property.
• If granted an on-premises beer and wine permit, Petitioner would clear a driveway from the proposed location that is accessible from McCray's Mill Road, while closing off accessibility to the proposed location from Ravenwood Road. By doing so, Petitioner hopes to minimize the traffic impact her establishment may have on the Ravenwood community.
• If issued a permit, Petitioner intends to serve beer and wine only to guests of the club and neighboring residents. The club's hours of operation would be as follows: 3:00 p.m. to 9:00 p.m., Monday through Wednesday; 3:00 p.m. to midnight on Thursday; 3:00 p.m. to 2:00 a.m. on Friday; and 3:00 p.m. to 11:30 p.m on Saturday. The club would be closed on Sundays. In addition, once a permit is issued, Petitioner would prohibit any guest from bringing any alcoholic beverage onto the premises.
• The Department would have refused to issue the permit on the ground that the local sheriff has determined that his office would be unable to provide adequate police protection. Sheriff Mims opposes the issuance of a permit because of his inability to provide adequate police protection. However, Sheriff Mims knows of no reason why Petitioner personally would not qualify for a beer and wine permit.
• 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).

• The Petitioner or its principal 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. 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 club with an on-premises beer and wine permit is different from and less conducive than other commercial businesses. There was no testimony that Petitioner intends to serve food of any sort. In short, it is a bar, deriving all of its revenue from the sale of beer and wine. Further, although the Petitioner proposes to close off vehicular access to the club from Ravenwood Drive with a gate, it is conceivable that guests of the club could go around the gate to access the club. Moreover, the proposed location is located in a residential area filled with children just off a busy highway. Finally, local law enforcement is unable to provide adequate police protection. For the foregoing reasons, including the proximity of the proposed location to a residential area, the nature of the proposed business activity renders the proposed location unsuitable. Accordingly, Petitioner's application for an on-premises beer and wine permit is 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 for its location at 940 Ravenwood Drive, Sumter, South Carolina is DENIED.

AND IT IS SO ORDERED.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

May 21, 2002

Columbia, South Carolina