SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is 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 Joseph Pilot seeks a renewal of the on-premises beer and wine permit for his Silver Bullet Game Room located at 517 New Bridge Road, Aiken, South Carolina. The South Carolina Department of Revenue (Department) would have granted the permit but for a protest from nearby residents regarding the suitability of the game room's location. Accordingly, the Department was excused from the hearing of this matter. After notice to the parties and protestants, a hearing was conducted on October 17, 2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location and the applicable law, Petitioner's application for a renewal of his 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 Joseph Pilot submitted an application for the renewal of an on-premises beer and wine permit to the Department on April 15, 2002, for the premises located at 517 New Bridge Road, Aiken, South Carolina. This application is incorporated by reference into the record.

2. Petitioner operates the proposed location as a tavern. The day-to-day operation of the business is managed by Petitioner's niece, Jeanie Hall. The establishment is open Tuesday through Saturday from 4:00 p.m. until close, except on Saturdays, when the tavern closes at midnight.

3. The proposed location is situated along New Bridge Road, a two-lane rural road in Aiken, South Carolina. Several residences are located on a nearby stretch of the road. Measured along the public thoroughfare, the entrance of the nearest residence is 683 feet from the entrance of the tavern, and five other residences lie within one thousand feet of the establishment. The proposed location is also situated near the intersection of New Bridge Road and Redd's Branch Road, which forks off of a curve in New Bridge Road. This intersection lies between the establishment and the nearby residences.

4. On April 9, 1992, the South Carolina Alcoholic Beverage Control (ABC) Commission ⁽¹⁾ denied Peggy Pilot's application for an on-premises beer and wine permit for the proposed location. ⁽²⁾ The establishment, then known as the Swampfox Lounge, was denied a permit because of the adverse impact of the lounge's operations on nearby residences. Most notably, local residents complained of encounters with intoxicated individuals, the dangerous traffic situation created by the patrons of the lounge, and the noise disturbances emanating from the lounge, including gunshots and revving motorcycles. Two of the concerned residents who appeared at the 1992 ABC Commission hearing, Betty Baughman and John Ledbetter, also appeared at the hearing before this tribunal in the instant case.

5. As a result of that denial and efforts by local residents, particularly Ms. Baughman, to protest subsequent applications for a beer and wine permit at the location, the proposed location was not permitted for the sale of beer and wine between 1992 and 1998. Nevertheless, in 1998, Petitioner obtained an on-premises beer and wine permit for the location. However, this permit was granted in the absence of protest from local residents because the residents did not receive proper notice of the application. Specifically, the application contained an incorrect address for the establishment, ⁽³⁾ and notice of the application was published, with the incorrect address, in The Augusta Star, rather than in an Aiken newspaper. ⁽⁴⁾

6. The protestants in the instant case, nearby residents Betty Baughman, John Ledbetter, Kathleen Pilz, and Bert Pilz, testified that, since reopening in 1998, the proposed location has been operated in a manner similar to its operations before its closure in 1992. The protestants complain of harassment by intoxicated individuals straying from the establishment, reckless driving by patrons leaving the location, and disturbances by noise, including loud music, originating from the tavern. Therefore, the protestants contend that Petitioner's on-premises beer and wine permit should not be renewed.

7. Petitioner concedes that the business was poorly run prior to 1992, but contends that its poor management was not attributable to him, but rather to the persons who had leased the premises from him. Further, Petitioner maintains that, since 1998, he has operated the establishment without incident and with no adverse impact on the surrounding community.

8. Because of the proximity of the location to a residential community and because of Petitioner's history of operating the location in a manner adverse to the welfare of the local residents, I find that the proposed location is unsuitable for the issuance of a beer and wine permit.

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 and 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. Further, the "proximity of a location to a church, school or residence is a proper ground, by itself, on which the [trier of fact] may find the location to be unsuitable." Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991).

9. However, 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 the issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).

10. The trier of fact must weigh and pass upon the credibility of the evidence presented. See S.C. Cable Television Ass'n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Further, the trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 389 S.E.2d 448 (Ct. App. 1990).

11. In considering the nature of Petitioner's tavern and its proximity to a residential community, I find the proposed location unsuitable for Petitioner's continued operation with a beer and wine permit. There are inherent consequences from the operation of a tavern that are not conducive to the harmonious coexistence of such an establishment with a surrounding residential community. The residents of the community surrounding the proposed location are entitled to be free of the kinds of noise disturbances, parking and traffic problems, and other nuisances that are associated with the operation of such taverns generally and that have been associated with the establishments at this particular location. ⁽⁵⁾ "The right of a person to use his own property does not entitle him to violate the peace and comfort of others in the vicinity." 3 S.C. Juris. Breach of Peace § 7 (1991). In the case at hand, the manner in which Petitioner has operated his establishments at the proposed location over the past decade have violated the peace and comfort of nearby residents, thus rendering the location unsuitable for the continued sale of beer and wine.

12. This tribunal is respectful of the fact that Petitioner has expended time and resources in securing the permit in question. And, this tribunal does not question Petitioner's sincerity in his attempt to eliminate disturbances at the proposed location. Nevertheless, there was a sufficient evidentiary showing in the present case that the proposed location is unsuitable for Petitioner's operations and that the re-issuance of his beer and wine permit would have an adverse impact on the community. See Kearney, 287 S.C. at 327, 338 S.E.2d 337 (upholding the denial of a beer and wine permit and minibottle license to a country-western music lounge with hours of operation similar to Petitioner's because of the impact of the lounge "upon [a local] School, upon the residential character of the surrounding area and upon the traffic congestion potential").

13. 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 re-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 517 New Bridge Road, Aiken, South Carolina, is DENIED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

November 7, 2002

Columbia, South Carolina

1. Prior to the creation of the ALJD, the ABC Commission was the governmental entity entitled to conduct hearings on contested alcoholic beverage permits and licenses.

2. This application lists Petitioner Joseph Pilot as Peggy Pilot's spouse.

3. See Pilot v. S.C. Dep't of Revenue, Docket No. 02-ALJ-17-0042-CC (S.C. Admin. Law Judge Div. Feb. 26, 2002) (remanding Petitioner's renewal application to the Department because of the discrepancy between the address listed on the original permit and the address on the renewal application).

4. While The Augusta Star may have an Aiken County circulation, it does not appear to be "a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business." See S.C. Code Ann. § 61-4-520(8) (Supp. 2001) (emphasis added).

5. Further, the mere fact that the location was licensed in the past, and is currently licensed, does not mean that the location is a proper one for Petitioner's activities. In fact, the problems associated both with prior establishments at the location and with the current business demonstrate that the location is unsuitable for the operation of a tavern.