ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001) for a contested case hearing. Petitioner Nola Kirkland seeks an on-premises beer and
wine permit for her restaurant located at 400 East Gay Street, Suite C, Lancaster, South Carolina. The Department of
Revenue (Department) would have granted the permit but for the protest filed by the Lancaster Police Department and
several concerned citizens regarding the suitability of the proposed location. On September 17, 2002, the Lancaster Police
Department moved, pursuant to ALJD Rule 20, for leave to intervene in this matter in opposition to Petitioner's
application. The motion to intervene was granted at the start of the hearing of this matter, which was held, after timely
notice to the parties and protestants, on October 1, 2002, at the Administrative Law Judge Division in Columbia, South
Carolina. Based upon the applicable law and the evidence presented regarding the suitability of the proposed location,
particularly that concerning criminal activity at or near the location, Petitioner's application for an on-premises beer and
wine permit is hereby denied.
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. Petitioner submitted an application for an on-premises beer and wine permit to the Department on April 29, 2002, for the
premises located at 400 East Gay Street, Suite C, Lancaster, South Carolina. This application is incorporated into the
record by reference.
2. Petitioner is over twenty-one years of age, is of good moral character, and has no record of any criminal convictions.
3. Petitioner is a citizen and legal resident of the United States, and has resided and maintained her principal place of abode
in South Carolina for at least thirty days prior to making her application for a beer and wine permit.
4. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has not had a beer and wine
permit or license to sell alcoholic liquors that was issued to her suspended or revoked.
5. Notice of Petitioner's application for an on-premises beer and wine permit was published in The Lancaster News once a
week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.
6. Petitioner leases the premises from Hook & Associate Realty of Columbia, South Carolina. The proposed location has
been licensed for the sale of beer and wine since 1966, and was operated by Petitioner's mother from 1966 until her
retirement in 1980, at which time Petitioner took primary responsibility for running the business.
7. The proposed location is situated on the 400 block of East Gay Street in Lancaster, South Carolina. This block, known
as "The Hill," is a mixed area of residential and commercial buildings bordering on a largely residential district. While
formerly a vibrant commercial center for the surrounding residential community, in more recent years The Hill has become
the hub of a high-crime area known for illegal drug activity and violent crime.
At the hearing of this case, several members of the Lancaster Police Department testified regarding the nature and extent of
the crime problem on The Hill. Chief Hugh White of the Lancaster Police Department described The Hill's decline from a
family-oriented business district to a high-crime area marked by frequent drug activity and numerous shootings, stabbings,
and assaults. Chief White also testified to the significant burden The Hill's crime problems place on local law
enforcement, particularly the great number of man-hours expended on patrolling the area, and described the efforts the
police department has taken to reduce crime in the area. Lieutenant Harlene Howard of the Lancaster Police Department
presented certain statistics indicative of the crime problem on The Hill. According to these statistics, problems on the 400
Block of East Gay Street generated 246 calls to the police between June 1, 2000, and May 31, 2001, and 302 calls to the
police between June 1, 2001, and May 31, 2002. Between April 18, 2000, and August 26, 2002, twenty-three calls for
service originated specifically from the proposed location. Further, Lieutenant Howard submitted eleven incident reports
for the 400 Block of East Gay Street from June through September of 2002; these incident reports describe several assaults,
a stabbing, a shooting, illegal weapons possession, possession of marijuana, possession of crack cocaine, and a strong-arm
robbery. Lance Corporal Laurie Catoe of the Lancaster Police Department also testified at the hearing. As an officer
assigned specifically to patrol The Hill, Lance Corporal Catoe described her personal observations of the crime problem in
the area and the disorderly conduct, assaults, drug activity, and other problems she has witnessed occurring on the property
immediately surrounding the proposed location.
A protestant, Chuck Carland, testified at the hearing regarding the crime problem on The Hill. Mr. Carland detailed the
numerous problems he encountered when he lived approximately one block away from the proposed location; he described
being frequently disturbed by noise and gunshots and often finding beer bottles and drugs on his property. Mr. Carland also
testified to the difficulty he has faced in trying to rent or sell another property he owns in the area. In particular, he stated
that he has been attempting, unsuccessfully, to sell the property since 1998.
8. Petitioner's establishment is located in the center of this high-crime area. While much, if not most, of the crime on The
Hill is not directly attributable to Petitioner's operations and does not occur within the four walls of Petitioner's
establishment, the congregation of people around Petitioner's business and a neighboring establishment is the source of a
significant amount of the crime on The Hill. Further, the manner in which Petitioner operates her business has contributed
to these problems. Specifically, Petitioner sells plastic cups for 15¢ a piece, or 25¢ a piece with ice, which are often used
by the purchasers to consume beer and liquor outside the Petitioner's establishment. Clearly, the sale of beer and wine at
Petitioner's business would only serve to exacerbate the problems on The Hill. Accordingly, I find that the proposed
location is unsuitable for the issuance of a beer and wine permit. (1)
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260
(Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001).
2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or
official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246,
248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm'n, 269 S.C. 13, 235
S.E.2d 806 (1977).
3. S.C. Code Ann. § 61-4-520 (Supp. 2001) establishes the criteria for the issuance of a beer and wine permit. Included in
the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7).
4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118
(1981).
5. The determination of suitability of location is not necessarily a function solely of geography. Rather, 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. S.C.
Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows
adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic
Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d
301 (1972)).
7. "[A] liquor license or permit may be properly 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).
8. The denial of a license to sell alcoholic beverages is appropriate where the proximity of the proposed outlet to areas of
public congregation would aggravate problems related to the consumption of alcohol in public. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E.2d 118 (1981); see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding the denial
of a retail beer and wine permit where the applicant's property was already the site of congregations of people attended by
some consumption of alcohol and disorder). Such denial is particularly appropriate when the public areas surrounding the
proposed location have been the source of constant law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm'n, 263
S.C. 451, 211 S.E.2d 243 (1975) (upholding the denial of a retail beer and wine permit upon evidence that local law
enforcement had constant problems with public intoxication in the vicinity of the applicant's store).
9. Given the history of frequent criminal activity and public disturbances at and around the proposed location, I find that the
sale of beer and wine at the location would be detrimental to the general welfare of the surrounding community.
There is ample evidence in the record establishing that Petitioner's property and surrounding properties are the site of
frequent criminal disturbances, including problems ranging from loitering and public intoxication to violent assaults and
the sale of illegal drugs. The addition of the sale of beer and wine to this volatile mix would only exacerbate The Hill's
serious crime problem. And, while Petitioner is correct in noting that much of this criminal activity is not directly caused
by her business and that much of it is beyond her control, it is equally true that her business has become a gathering place
for certain elements of the community, and that the sale of beer and wine at the location would only make a bad situation
worse.
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973), is instructive on this point. In that case, a grocery store and
launderette was seeking a retail beer and wine permit. Local law enforcement officers testified that the store's parking lot,
which, through no fault of the store, had become a place for local residents to congregate, was the site of frequent
disturbances and other criminal activity. The South Carolina Supreme Court upheld the Alcoholic Beverage Control
Commission's denial of the permit on the ground that, as "congregations of people on [the applicant's] property are not
infrequently attended by some consumption of alcohol and disorder . . . .[,] the Commission could reasonably have
concluded that the situation would be worsened by making cold beer immediately available." Id. at 58, 194 S.E.2d at 193.
Such is the case here. Petitioner's business and surrounding property have become a place of congregation not infrequently
attended by the consumption of alcohol and other intoxicants and by disorderly and criminal conduct. Accordingly, I
conclude that the condition of the community surrounding Petitioner's property would be worsened by making beer
immediately available from Petitioner's establishment.
10. This tribunal is well aware that the proposed location has been permitted for the sale of beer and wine for many years
by Petitioner's mother. Nonetheless, this fact alone does not entitle Petitioner to continued licensure of the location. A
permit to sell beer and wine is neither a contract nor a property right. Rather, it is merely a permit, issued or granted in the
exercise of the police power of the state to do what otherwise would be unlawful to do, and to be enjoyed only so long as
the restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax Comm'n, 203 S.C. 49,
26 S.E.2d 22 (1943). Here, changes in the character of the area surrounding Petitioner's establishment and in the nature of
Petitioner's operations have rendered a location that was perhaps once suitable for a beer and wine permit unsuitable for
such a permit at present.
11. As the trier of fact, the issuance or denial of a permit rests within the sound discretion of this tribunal. Inherent in the
power to issue a permit is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the
permit in the instant case is compelled because the issuance of the requested permit would be detrimental to the inhabitants
of the community surrounding Petitioner's establishment.
ORDER
Based upon the Findings of Fact and Conclusions of Law above,
IT IS HEREBY ORDERED that Petitioner's application for an on-premises beer and wine permit for the premises
located at 400 East Gay Street, Suite C, Lancaster, South Carolina, is DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 31, 2002
Columbia, South Carolina
1. Further, while this location has been licensed for the sale of beer and wine for a number of years, the changes in the
character of the area surrounding the establishment during those years have rendered the location, which may have once
been suitable for the sale of beer and wine, unsuitable for such sales at the present time. |
