SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-4-520 (Supp.2001) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit for the location at 1421 West Market Street, Anderson, South Carolina. This matter is presently before the Division because of a protest by concerned citizens concerning the suitability of the location. The Respondent moved to be excused since but for the protests they would have issued the permit and license. This motion was denied. After notice to all parties and Protestants, a hearing was conducted on July 30, 2002, at the Division in Columbia, South Carolina. At the hearing, the parties and all Protestants were present.

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

• The Petitioner seeks an on-premises beer and wine permit for the location known as

Club, located at 1421 West Market Street, Anderson, South Carolina.

2. The Respondent, South Carolina Department of Revenue, determined that the

location and the Petitioner met all statutory requirements and would have granted the permit but for the protests as to suitability of the location.

• The location is in an area of Anderson that is a mixture of residential and

commercial establishments. The Petitioner intends to have a nightclub at the proposed location and to cater to patrons who are 25 and older. The Petitioner has hired a retired sheriff's deputy to maintain security at the location. There will be security inside and outside.

4. This location was permitted approximately ten (10) years ago as a

nightclub which had some law enforcement trouble. Most recently it was a video poker parlor. The area has remained mostly unchanged during this time.

5. Members of a church near the proposed location oppose the permit. The church has

been in the area for sixteen (16) years. Over that period of time the church has worked diligently to clean up the neighborhood and make it a safer place. They testified that opening a nightclub in the area would be detrimental to their efforts. They fear violence will occur at the nightclub and spill over into their community. The church has a park that is used for recreation. They fear increased foot traffic across their property and the park and the depositing of beer bottles and other trash. Therefore, they believe the location is unsuitable for a permit.

6. In the photographs introduced by Mr. Rice there is a park very near his property.

However, this is not the church's park. This park has little upkeep and little use.

7. The proposed location is not visible from the church. The measurement taken by the

agent for the South Carolina Law Enforcement Division who investigated the permit shows that the proposed location and the church are 1,357 feet apart. This measurement was taken by the road which would be the ordinary course of travel between the two locations. The Protestants contend it is significantly closer if a direct measurement was taken.

8. The applicant is of good moral character. The State Law Enforcement Division's

criminal background investigation revealed no criminal violations. ⁽¹⁾

9. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the

State of South Carolina, and has maintained his principal residence in the State for at least thirty days prior to the application.

10. Notice of the application appeared in The Anderson Independent-Mail, a newspaper

of general circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted at the proposed location for fifteen days.

CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001).

2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).

4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered.

5. The determination of suitability of 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). Further, the Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as the existence of small children in the area.

6. 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).

7. 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 alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. S.C. Code Ann. § 61-4-525 (Supp. 2001) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written protest.

9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).

10. After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine. There is nothing to indicate that the Petitioner would operate his business in an unlawful manner. Further, the church is located at such a distance that it is unlikely having a nightclub at the proposed location would have a negative impact on the community.

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

ORDERED that the South Carolina Department of Revenue grant the Petitioner's application for an on-premises beer and wine permit.

AND IT IS SO ORDERED.

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

August 29, 2002

Columbia, South Carolina

1. The Department's file, which was admitted into evidence without objection, reveals that an employee with day-to-day operational management responsibilities (not the applicant) has a criminal conviction for assault and battery. However, this was not raised at the hearing and the Department appears to have no concern about it.