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 applications by Petitioner, Johnnie Mae Hall, d/b/a J G W's Bar & Grill, ("Petitioner") for an on-premise beer and wine permit, and a sale and consumption ("mini-bottle") license for a location at 2575 Peak Road, Pomaria, South Carolina. Upon receipt of several written protests to the applications, the South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing. After timely notice and without objection, Chief Deputy Jerry Wright was granted leave to intervene. A contested case hearing was held on August 12, 2002, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants were Charles Suttinger, Edith Wicker, and Daisy Zeiders. Johnnie Mae Hall, the owner/operator of J G W's Bar & Grill ("Grill"), testified in support of the applications. Upon review of the relevant and probative evidence and applicable law, the applications for the on-premise beer and wine permit and a sale and consumption ("mini-bottle") license are granted subject to certain conditions and restrictions, which must be agreed to by Petitioner in writing.

FINDINGS OF FACT

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, the Intervenor, and Department.

2. Johhnie Mae Hall, on behalf of Petitioner, seeks an on-premise beer and wine permit and a sale and consumption ("mini-bottle") license for the proposed location of 2575 Peak Road in Pomaria, South Carolina.

3. The Department moved to be excused from appearing at the hearing on the ground that it would have granted the permit and licenses but for the written protests it received. Said motion was granted.

• The Grill is located behind two residences on property abutting Peak Road a few miles north of the town of Pomaria. Ms. Hall's parents live in one residence while the other, a mobile home owned by Ms. Hall's brother, is vacant. Two driveways, one running beside each of the homes, lead to the Grill. Parking is available on the property and has accommodated approximately 75 cars. Ms. Hall has plans to remove the vacant mobile home, which would create additional parking.
• The Grill is currently operating as a restaurant called Johnnie's Place. Johnnie's Place is open for business from 11:00 a.m. to 9:00 p.m. on Fridays, 8:00 a.m. to 9:00 p.m. on Saturdays, and 8:00 a.m. to 7:00 p.m. on Sundays. Johnnie's Place serves breakfast as well as barbeque and currently has an "A" health rating from the Department of Health and Environmental Control. Music is played, but not loudly. Ms. Hall, her mother, her daughter, and her son all work at Johnnie's Place and will continue to work at the Grill.
• There is a bar located in the Grill that is approximately thirty feet by 15 feet. It is separated from the restaurant portion of the Grill.
• If Petitioner receives the license and permit, the Grill will be open from 6:00 p.m. to 10 a.m. on Thursdays, 11:00 a.m. to midnight or 1:00 a.m. on Fridays, 8:00 a.m. to midnight on Saturdays, and 8:00 a.m. to 7:00 p.m. on Sundays.
• If Petitioner receives the license and permit, she will employ a security guard to patrol the location during the evening hours of operation.
• Near the Grill are located several homes. Across the road from the Grill is a mobile home park. However, no resident of the mobile home park is protesting the issuance of the permit and license.
• Edith and Claude Wicker live across the road from the Grill. Ms. Wicker worries about people drinking and driving. She is concerned that the Grill is located in an residential area approximately eight tenths of a mile from a church, with two ballfields in between. There have been parties at this location in the past, and Ms. Wicker is concerned that the music may get too loud. One time, a man living behind the Wickers attended a party on the property where the Grill is located and came back drunk.
• Daisy and Earle Zeiders live on a large parcel bordering the property of the Grill. The Zeiders' home is at least a football field from the Grill. Their daughters may wish to build homes on the Zeiders' property closest to the Grill. Ms. Zeiders is concerned that people will go to the Grill to drink. There have been at least four accidents in front of the Zeiders' property that were caused by a drunk driver. However, Ms. Zeiders conceded that the drunk drivers had not been patrons of the Grill. Ms. Zeiders believes there is a potential for problems that would be out of Ms. Hall's control.
• Charles Suttinger, Jr., owns a mobile home located approximately 250 yards from the proposed location. However, Mr. Suttinger does not reside in that mobile home. He lives approximately four miles away. According to Mr. Suttinger, several children live in the area surrounding the Grill. However, no parent of a child living in the area protested the issuance of the license and permit.
• Captain Eddie Salazar, testifying on behalf of the Intervenor, is currently a supervisor with the Newberry County Sheriff's Office ("NCSO"). Prior to his current position, Captain Salazar was a narcotics officer with NCSO. In 1997, Captain Salazar executed a search warrant on the property of the proposed location. As a result of that search, approximately 100 beers, many ½ pint bottles consistent with a bootlegging operation, and a large sum of cash were seized. Six persons, including Charles Farrow, father of Johnnie Mae Hall, were arrested. Mr. Farrow pleaded guilty to six counts of unlawful alcohol sales. However, Captain Salazar admitted that neither Ms. Hall, her mother, her daughter, nor her son were implicated in any way in the incident. Captain Salazar believe that the Grill would be violating zoning ordinances if granted the license and permit because the County has zoned the subject property as RG- general residential.
• Though the evidence raises concerns that the proposed location may potentially adversely impact the surrounding community, there was no evidence offered that issuing the requested license and permit would actually have an adverse impact on the surrounding community. Moreover, although the County has concerns that the Grill would violate zoning ordinances, it is not for this tribunal to enforce such ordinances.

CONCLUSIONS OF LAW

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

• S.C. Code Ann. § 1-23-600 (Supp. 2001) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
• S.C. Code Ann. § 61-4-520 (Supp. 2001)sets forth all of the requirements for the issuance of a beer and wine permit. Petitioner has met all requirements pertaining to age, residency, moral character, and public notice.
• S.C. Code Ann. § 61-6-1820 (Supp. 2001) sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license. Petitioner has met all requirements as they pertain to public notice, absence of criminal background, the conducting of a food preparation business, age, and residency.
• Section 61-4-520 also requires that the proposed location is "suitable." Likewise, § 61-6-910 prohibits the issuance of a mini-bottle license if "the store or place of business to be occupied by the applicant is not a suitable place." S.C. Code Ann. § 61-6-910 (Supp. 2001).
• 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 permits and licenses to sell alcoholic beverages 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, on 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).
• 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 and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
• A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the permit or license pursuant to S.C. Code Ann. §§ 61-4-580 and 61-6-1830 (Supp. 2001).
• I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding a beer and wine permit and a sale and consumption ("mini-bottle") license as a restaurant at the location. Further, because the ultimate purpose of zoning is to confine certain classes of buildings and uses to certain localities, 101A C.J.S. Zoning and Land Planning § 101 (1979), the authority to restrict the use of certain localities is vested solely with the local government. Consequently, the City alone must enforce its zoning ordinances. Finally, although cognizant of the Protestants' concerns that something bad might happen if the Grill is granted its license and permit, I conclude that the proposed location is a proper one for granting the permit and license, subject to the following restrictions which must be stipulated to:

RESTRICTIONS

• The Petitioner and its employees shall maintain proper lighting around the proposed location.
• The Petitioner and its employees shall prohibit loitering and the consumption of beer, wine or liquor by the patrons/customers in the parking lot area of the proposed location.
• The Petitioner and its employees shall cease serving alcoholic beverages, to its customers, patrons, guests and employees at the proposed location not later than 10:00 p.m. on Thursdays, and not later than midnight on Friday and Saturday.
• The Petitioner shall provide a garbage receptacle in the front of the proposed location and a garbage receptacle in the rear of the proposed location.
• The Petitioner shall not allow music to be played that can be heard beyond the property boundaries of the proposed location.
• Petitioner shall employ a security guard to patrol the location after dark each night the bar is open for business.
• Parking is restricted to the parking lot of the proposed location.
• Operation of the proposed location shall not disturb the peace and tranquility of the neighborhood.
• The Petitioner shall prohibit Charles Farrow, father of Johnnie Mae Hall, from entering the Grill during hours of operation. Further, Petitioner shall enter into no type of employment relationship with Charles Farrow.

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 and a sale and consumption ("mini-bottle") license as a restaurant for its location at 2575 Peak Road in Pomaria, South Carolina is granted upon payment of all fees and statutory requirements.

IT IS FURTHER ORDERED that the permit and license 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

August 13, 2002

Columbia, South Carolina