ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260, 61-4-520, 61-4-525, 61-6-20 (2), 61-6-120, 61-6-1820 (Supp. 2001) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 2001) for a hearing pursuant to the application of Liquid
Therapy. The applicant seeks an on-premises beer and wine permit and a sale and consumption business (restaurant)
minibottle license for a restaurant and bar located at 4742 Broad Street Extension, Sumter, South Carolina.
After timely notice to the parties and the protestants, a hearing was held at the Administrative Law Judge Division in
Columbia, South Carolina, on July 29, 2002. All of the Protestants appeared with the exception of Patricia Ranalli, who
was represented by counsel. The request for a contested case hearing was made by the Petitioner after the Department of
Revenue (DOR) denied the permit and license based on the following: (1) the applicant was not engaged primarily and
substantially in the preparation and serving of meals and had not received a Grade A Health Certificate from the
Department of Health and Environmental Control; (2) the location is within close proximity to a church and (3) there were
protests as to the suitability of the proposed business location.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, 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:
1. The applicant seeks an on-premises beer and wine permit and a sale and consumption business (restaurant) minibottle
licence for a restaurant and bar located at 4742 Broad Street Extension, Sumter, South Carolina. On the application,
Charles Windham and Allison House were listed as the principals in the business. At the hearing, Corinna Windham also
testified that she is a partial owner of the business.
2. The Respondent moved to make the file of the South Carolina Department of Revenue and Taxation (DOR) a part of the
record. There was no objection, and the motion was granted.
3. The proposed location is situated in Sumter County outside the city limits of the Town of Sumter.
4. The area surrounding the proposed location is a mixture of residences and commercial establishments. Immediately
behind the proposed location is the Any Length Recovery Center which is a residential center for people recovering from
alcohol and drug abuse. The residents and staff members of the recovery center are opposed to the permit and license. They
believe the proposed location will be primarily a bar and will be detrimental to their recovery efforts. They dispute that the
location will be primarily a restaurant, because of its name and because of advertisements they have seen at the location.
5. No school or playground is within close proximity to the proposed location. However, there is a nearby church. The
measurement of DOR finds that the church is 218 feet from the proposed location. This is by a measurement from the front
door of the location to the front door of the church. There was testimony that the Shubach Delivery Outreach Ministries
holds regular worship services and has the times of the services posted outside. The Petitioner contends the proximity of
the church should not be considered because the church has not protested. Also, the church was present when the location
was licensed previously.
- Testimony was that the proposed location had previously been the Caribbean Pepper
Pot and Sambino's. Both were primarily restaurants. The former establishments held only beer and wine permits.
7. DOR's investigatory report of March 25, 2002, found that the establishment was not prepared to be primarily and
substantially engaged in the service of food. Also, at the time of the report, the location did not have a Class A Health
Certificate. At the hearing the Petitioner introduced evidence that the location now has a complete menu, including a lunch
menu. The Petitioner also placed in evidence a letter from the Department of Health and Environmental Control that the
establishment has been added to its inventory as a food service establishment. The Petitioner contends the document shows
it now has a Class A Health Certificate, but the document does not show that on its face.
8. The proposed location is leased to Charles Windham by Sumter Mortgage Company.
9. Sheriff Thomas Mims of the Sumter County Sheriff's Department testified in
opposition to the application because he does not believe he can provide adequate police protection. Specifically, budget
cuts in his department do not allow him to give full protection for bars. However, this applies to all bars in the county and
is not because of any particular issue with this bar. He did meet with the applicants at the location and he believes the
atmosphere was that of a bar. The only evidence of food preparation he saw was a deep-fat fryer and a microwave.
10. The applicants are of good moral character.
11. Neither Allison House nor Charles Windham have a criminal record.
12. The applicants are at least 21 years of age, U.S. citizens, citizens of the State of
South Carolina, and have maintained their principal residences in the state for at least thirty (30) days prior to the date of
making application.
13. Notice of the application appeared in The Item, a newspaper of general circulation in the area of the proposed location,
for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following: 1. S.C. Code Ann. § 61-2-260
(Supp.2001) authorizes the South Carolina Administrative Law Judge Division to hear this case pursuant to Chapter 23 of
Title 1 of the 1976 Code, as amended.
2. S.C. Code Ann. §§ 61-6-110 and 61-6-1820 establish the criteria for a sale and consumption (minibottle) license. S.C.
Code Ann. § 61-4-520 (Supp. 2001) establishes the criteria for the issuance of a beer and wine permit.
3. S.C. Code Ann. §61-6-1820 provides in pertinent part, "The department may
issue a license under subarticle 1 of this article upon finding: (1) ...the applicant conducts a business bona fide engaged
primarily and substantially in the preparation and serving of meals...." S.C. Code Ann. §61-6-120 states,
"The department shall not grant or issue any license provided for in this article..., if the place of business is within...five
hundred feet of any church, school, or playground situated outside of municipality. Such distance shall be computed by
following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point
of the grounds in use as part of such church, school, or playground, which, as used herein, shall be defined as follows: (1)
"Church", an establishment, other than a private dwelling, where religious services are usually conducted; ..."
This is a statutory prohibition to the Department and does not require a challenge by the affected party. It is not relevant
whether the church protested the license since the Department is prohibited from issuing a license under certain statutory
provisions. I find that this application for the sale and consumption (minibottle) license falls within the statutory provisions.
The measurement taken from the front door of the location to the front door of the church is only 218 feet, which would be
the shortest route of ordinary travel. The distance must be five hundred feet for the license not to be statutorily prohibited.
Therefore, the issue of food preparation and service does not need to be reached.
4. The statutory prohibition based on proximity to a church only applies to alcoholic liquors and does not apply to beer and
wine permits. Likewise, the requirement that a business be primarily and substantially engaged in the preparation and
service of food only applies to sale and consumption (minibottle) licenses. Therefore, the beer and wine permit must be
evaluated for suitability of location. Although "proper location" is not statutorily defined, broad discretion is vested in the
Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281
S.E.2d 181 (1981).
5. 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. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6. 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); Schudel v. South Carolina ABC
Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
7. "A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely
affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be
detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be
conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). In determining
whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse
circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n,
282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
8. This neighborhood is unique in that it has a residential recovery center for alcohol and drug abuse. The testimony of the
residents and staff members was compelling in that this type of establishment would be detrimental to their community.
The witnesses admitted that during recovery they are faced with temptations in many places, including other places in the
area. However, they were clear that an establishment that is so centered around the sale of alcohol would not be conducive
to the general welfare of their residential facility. Even the name of the proposed location seems to have adversely affected
them. For these reasons, the permit should not be granted. The nature and operation of this establishment would have a
significant detrimental impact on the community.
ORDER
Based upon the Findings of Fact, Conclusions of Law, and Discussion, it is hereby:
ORDERED that the application of Liquid Therapy for a beer and wine permit and a sale and consumption business
(restaurant) minibottle license for a restaurant and bar located at 4742 Broad Street Ext., Sumter, South Carolina, is
DENIED.
AND IT IS SO ORDERED.
______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
August 28, 2002
Columbia, South Carolina |
