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 Jackie Melton, d/b/a Airport Lounge ("Petitioner") for an on-premise beer and wine permit for a location at Hwy. 9 Airport, in Cheraw, South Carolina. Based upon its receipt of a number of written protests to the application as well as the position of the local sheriff's department that it could not provide adequate police protection, 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 July 17, 2002, at the ALJD in Columbia, South Carolina. None of the protestants, including Captain Ricky Quick of the Chesterfield County Sheriff's Department, attended the hearing. Jackie Melton testified in support of his application. Upon review of the relevant and probative evidence and applicable law, the application for 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. ⁽¹⁾
• The Petitioner seeks an on-premises beer and wine permit for the Airport Lounge, located at Hwy. 9 Airport, in Cheraw, South Carolina ("proposed location" or "lounge"). The proposed location is situated on a Highway 9, a major thoroughfare connecting the cities of Chesterfield and Cheraw. The location has been licensed for alcohol sales and consumption since 1938. In the area of the proposed location are two residences and two churches. The closest church is Maranath Family Center, which operates a school on its premises. Maranath Family Center is approximately 700 feet from the proposed location and was constructed in 1985.
• The applicant is 46 years old and a life-long resident of South Carolina. He has never held an alcohol license or permit previously, although his wife, Sherry Melton, held a license for the same location in the mid-1990s.
• The applicant has a criminal record dating back to the late 1970's. Most of his convictions were alcohol-related. His last arrest and conviction was for Driving Under the Influence, in 1990. Approximately 6 years ago, the applicant quit drinking and has had perhaps six beers since that time.
• The prior licensee of the proposed location posted pictures of women in various stages of undress and hung beer signs, all visible to passers-by. In addition, wet t-shirt contests and other forms of "adult entertainment" were held on the premises. Since the applicant has taken over, he has removed all pictures and beer signs from the exterior of the building and ceased all "adult entertainment."
• Sheriff's deputies pass by the proposed location daily and frequently park in the proposed location's parking lot. Petitioner has not had a problem requiring law enforcement while he has worked at the proposed location.
• If granted an on-premises permit, the Petitioner will continue to keep the establishment free of outside beer advertising and inappropriate pictures. In addition, Petitioner will not have "adult entertainment" on premises. Further, Petitioner will continue to work with neighboring residents and churches to prevent his establishment from becoming a problem to such neighbors.
• The evidence fails to 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, Jackie Melton, has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001), concerning residency and age, as well as the publication and notice requirements.
• Although the Petitioner has a criminal record, there is no evidence that he does not now possess sufficient moral character to hold an on-premises beer and wine permit.

• 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 have previously been stipulated to:

RESTRICTIONS

• The proposed location shall remain free of outdoor advertising of beer and wine and inappropriate pictures.
• The proposed location shall not be the site of wet t-shirt contests or other forms of "adult entertainment."

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 the Airport Lounge, located at Hwy. 9 Airport, Cheraw, 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

July 17, 2002

Columbia, South Carolina

1. After convening the hearing, the undersigned asked if any of the Protestants were present. No one responded. Thereafter, the undersigned recessed for fifteen minutes to allow any latecomer Protestants to arrive. The undersigned then reconvened the hearing. Still no Protestants appeared. Consequently, all Protestants are deemed to have abandoned their protests.