ORDERS:
ORDER AND DECISION
This matter came before the Administrative Law Judge Division
upon the application of Cynthia Hughes on behalf of C.A. Hughes,
Inc. for an on-premises beer and wine permit for the Travelers Rest
Coffee House located at 26 Walnut Lane in Travelers Rest, South
Carolina. After notice to all the parties, a hearing was conducted
on June 8, 1994. The file of the Department of Revenue and
Taxation was made a part of the record without objection. A copy
of the file is substituted for the original. Based upon the
preponderance of the testimony and evidence presented, I make the
following:
FINDINGS OF FACT
1. The applicant, Cynthia A. Hughes, is over the age of
twenty-one and has been a resident of South Carolina all of her
life. She is the president and sole shareholder of C.A. Hughes,
Inc. She is a person of good moral character and has never been
convicted of a crime. There are five applications for on-premises
beer and wine permits, some of which may still be pending. At the
time of the hearing, she did not hold any permits from the
Department and has never had any permits suspended or revoked.
2. C.A. Hughes, Inc. owns and/or leases property from which
it plans to operate several deli type restaurants. The Travelers
Rest Coffee House is currently a game room that serves snacks and
sodas. It was previously operated as a lounge. The kitchen will
be remodeled and expanded to provide more grills and better
exhaust. The hours of operation will be 12 noon to 12 midnight,
Monday through Saturday. In the future it may open earlier to
accommodate a lunchtime patrons.
3. The building is located on the frontage road of Highway
25 between Asheville, North Carolina and Greenville, South Carolina
in a commercial area. It is the main commercial area of Travelers
Rest. There are several locations in the area that are licensed
for either on-premises or off-premises sale of alcoholic beverages
including beer and wine. The location is three-tenths of a mile
from a church and approximately six-tenths of a mile from an
elementary school. The police station is located within one mile
from the proposed location.
4. The applicant began operating this business in December
1992. There will be a manager at the location but that person
will have no independent managerial powers. The applicant through
her company will supervise and train employees on the laws
regarding the sale and consumption of alcoholic beverages.
5. The applicant met with the police chief regarding past
problems when the lounge was operated by others. The chief of
police appeared at the hearing and vigorously protested the
application. The protest was based on problems experienced in the
area in the past when the location was licensed for on-premises
consumption. The history of the location revealed that types of
establishments operating in the past created an environment for
unruly behavior involving numerous disturbances and altercations
resulting in injury to patrons. The location was a source of
constant police investigations. Even when the location became a
private club there were still numerous incident reports. At one
point the local government revoked business licenses for the
operators of the establishment. Ultimately in July or August 1991,
the alcoholic beverage license held by that individual was
suspended and the lounge closed. Since that time there have been
no problems with the location. Since the applicant has been
operating the lounge there have been no problems, which the police
chief attributes to the inability to sell alcoholic beverages. The
problems existed during the time the location was licensed.
6. Walnut Lane Estates, a residential area, is located
within 600 feet of the lounge. Also in the vicinity is a
residential area called Grandview. Both of these areas border the
proposed location but are separated from it by a wooded area and
streets. The residents of this area have complained about
increased traffic. The police chief expressed concern for kids
going to the neighborhood pool and the increased traffic on the
streets away from the highway access roads. However, there are
many businesses including a shopping center and other restaurants
and bars located in the same area and bordering on these
residential areas as well.
7. Notice of the application was published in the Travelers
Rest Monitor and posted on the premises for the time period
prescribed by law.
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 proposed location is not in close proximity to
any of these entities.
5. The applicant meets the statutory requirements for the
issuance of an on-premises retail beer and wine license. The
location is a suitable one. It is located in a commercial area of
Travelers Rest on Highway 25 where a shopping mall and several
other restaurants and businesses are located. It is not in close
proximity to any churches, schools or playgrounds. The corporation
will develop a training program and enforcement policy regarding
the sale of alcoholic beverages. There is adequate police
protection. The residents are shielded from this commercial area
and the possibility of increased traffic is not a serious threat to
the community.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is
ORDERED, that the applicant, Cynthia A. Hughes and C.A.
Hughes, Inc. are entitled to the issuance of an on-premises retail
beer and wine permit. The Department shall issue the permit upon
the payment of the appropriate fees.
AND IT IS SO ORDERED.
_________________________
ALISON RENEE LEE
Administrative Law Judge
July __, 1994
Columbia, South Carolina |
