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, John Michael Martinez, d/b/a Angelo's Bar, for an on-premises beer and wine permit for a location at 1274 Pendleton Street, Greenville, 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 29, 2002, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants was Dr. Jimmy B. Smith, pastor of Branham Baptist Church, located near the proposed location. John Michael Martinez testified in support of the application. Upon review of the relevant and probative evidence and applicable law, the application for an on-premises 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 Department moved to be excused from appearing at the hearing on the ground that it would have granted the permit but for the protests of several area residents, who called into question the suitability of the location. Said motion was granted.
• The Petitioner seeks an on-premises beer and wine permit for the proposed location at 1274 Pendleton Street, Greenville, South Carolina.
• Several residential neighborhoods are located in close proximity to the proposed location, with several residential homes across the street from it. These homes, where some minor children live and play, are in view of the proposed location.
• There are several churches in the area, with at least two in view of the proposed location. At least one church has services and programs throughout the week attended by its parishioners and their children.
• The proposed location, if permitted, would operate from 5:00 p.m. until 2:00 a.m.
• The proposed location is intended to be a bar and the Petitioner admitted that this community may not be a good one for a bar.

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).
• On the other hand, 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 bar with an on-premises beer and wine permit is different from and less conducive to a residential area than other commercial businesses. For the foregoing reasons, the nature of the proposed business activity renders the proposed location, located in the close proximity to residents and churches, 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 1274 Pendleton Street, Greenville, South Carolina, is DENIED.

AND IT IS SO ORDERED.

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C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

May 29, 2002

Columbia, South Carolina