ORDERS:
ORDER AND DECISION
This matter came before the Administrative Law Judge Division
on the application of Shelisa A. Starr for an on-premises beer and
wine permit for a cafe located at 702 Kings Mountain Street in
Clover, South Carolina. After notice, a hearing was held on May
23, 1994 during which the file of the Department of Revenue and
Taxation (Department) was made a part of the record. Based upon
the testimony and the evidence presented, I make the following:
FINDINGS OF FACT
1. Shelisa Starr is over the age of 21 and has been a
resident of Clover, South Carolina for over five years. She is a
legal resident of the United States.
2. The applicant has no criminal record and is a person of
good moral character.
3. She has never had a beer and wine permit and has never
been the subject of any suspension or revocation hearing with the
Department or the Alcoholic Beverage Control Commission
(Commission).
4. Notice of the application was published in a newspaper of
general circulation in the area for the required time period and
was posted at the proposed location.
5. The proposed location is approximately three miles from
the North Carolina border in Clover, South Carolina. It is a cafe
that sells hamburgers, cheeseburgers, hot dogs and sodas. There is
a pool table and video games. The hours of operation are eleven
o'clock a.m. until eleven o'clock p.m. Monday through Saturday.
6. There are no schools or playgrounds in the area and a
church is located across from DBlock. The church submitted a
protest letter but failed to appear at the hearing. The
surrounding area is primarily residential although there are some
businesses in the vicinity. The building is located one-half mile
from the Clover Police Station.
7. The applicant leases the building and has been involved
in the operation of the business since the end of December 1992.
The previous occupant, Roberta Allison, operated a business called
"Black's Cafe" and held a permit from the Commission.
8. Witnesses on behalf of the applicant stated that the
location was clean, well run, and had no problems with violence.
The only protestant appearing at the hearing was chief of the
Clover Police Department. He produced several incident reports of
investigations during 1992 and 1993 for the location.
9. Since the applicant has been operating the location, the
number of incidents has dropped. In 1993, there were five reports
investigated by the police for this location and the surrounding
area. Two incidents involved the discharge of a firearm. One
occurred in January 1993 inside the location when a gun was
discharged which ricocheted hitting someone in the leg. The other
occurred in May 1993 when a gun was discharged outside the
location. DBlock was closed at the time this incident occurred.
10. The remaining incidents were minor ones except in October
of 1993 when beer was seized from the premises. There were
allegations that Mrs. Fewell, an employee of DBlock and the actual
manager, was giving away beer. Mrs. Fewell did not deny that the
intention was to give away beer while patrons watched the World
Series on television but the beer was seized before it could be
given away.
11. Several other concerns were raised by the police chief
including adequate parking, fire inspection questions, and the
ability of the police to handle large crowds at the location. As
a result of these concerns the police requested DBlock to close no
later than 12 midnight. The police believe the incidents have been
reduced because beer and wine are unavailable at this location.
There are other establishments in the area which sell beer and wine
to go. The police chief admits that most of the concerns are not
with the issuance of a beer and wine permit but with the operation
of the business.
12. There is parking for the location on the side and some in
the rear. The funeral home has given verbal permission to use its
lot for additional parking.
13. The applicant is willing to agree to certain stipulations
requested by the police department. Letters addressed to the
Division regarding the request and the applicant's response are
incorporated as attachments to this Order.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division is vested with the
powers, duties and responsibilities exercised by the former
Alcoholic Beverage Control Commission and hearing officers pursuant
to Chapter 23 of Title 1. S.C. Code of Laws § 61-1-55 (Supp.
1993).
2. S.C. Code § 61-9-320 (Supp. 1993) provides the statutory
requirements for this issuance of beer and wine permits. It states
in part:
No permit authorizing the sale of beer or wine
may be issued unless:
...
(6) The location of the proposed place of
business of the applicant is in the opinion of
the department a proper one. 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 its effective date.
S.C. Code § 61-9-320 (6) (Supp. 1993).
3. Although "proper location" is not statutorily defined,
"rather broad discretion is vested in the Commission in determining
the fitness or suitability of a particular location." Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This
determination of suitability is not solely a function of geography,
but involves an infinite variety of considerations related to the
nature and operation of the proposed business and its impact upon
the community where it is to be situated. Kearney v. Allen, 287
S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel v. S.C. ABC
Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).
4. In addition, proximity of a location to a church, school,
playground, or residence is a proper ground, by itself, on which
the location may be found unsuitable for a permit to sell beer and
wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653
(S.C. 1991). The protest by the church was not pursued and is
deemed abandoned.
5. The applicant meets the statutory requirements for the
issuance of an off-premise retail beer and wine license. The
location is a suitable one.
6. The concerns by the Police Department are addressed in
the request for certain stipulations. See Letter from David P.
Milligan dated May 25, 1994. The applicant is willing to agree to
the stipulations with some modifications. See Letter from Daniel
D. D'Agostino dated June 1, 1994. The modifications regarding the
presence of a security guard at the establishment are reasonable.
With respect to the presence of the applicant on the premises, in
her application she stated that she would be the manager of the
establishment. This implies that she would be present to oversee
the operation of the business. During her testimony on numerous
points she indicated she had no knowledge of certain activity
although Mrs. Fewell, the actual manager, had knowledge. If she is
not going to be present at the location during operating hours then
the applicant must make herself aware of the events on the
premises. As the licensee she will be held responsible for the
activity occurring on the premises especially at it relates to the
sale of beer and wine. The applicant has agreed to be present at
least 50% of the time the business is operated and this is
reasonable.
ORDER
Based upon the Findings of Fact, Conclusions of Law, and the
Stipulations as modified by the Letter of Mr. D'Agostino on behalf
of the applicant, Shelisa A. Starr is entitled to an on-premises
beer and wine permit. The Department shall issue the permit with
the stipulations as contained in the letter of Mr. D'Agostino. The
Department shall inform the applicant that the stipulations are
additional requirements for the privilege of holding a permit and
are conditions which if violated may result in administrative
action by the Department. It is therefore,
ORDERED, that the Department shall issue the permit to Shelisa
A. Starr with the stipulations specified in the letter referenced
above upon the payment of the appropriate fees. Further a copy of
this Order shall be sent to the Chief of the Clover Police
Department.
IT IS SO ORDERED.
____________________________
ALISON RENEE LEE
Administrative Law Judge
Columbia, South Carolina
July __, 1994. |
