ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C.
Code Ann. §§ 61-1-55, et seq. (Supp. 1993) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev.
1986 and Supp. 1993) for a hearing pursuant to the application of Cynthia T. McDonald for
an on-premise beer and wine permit (AI 984449) for the premises located at 1423 North
Rocky River Road, Lancaster County, South Carolina ("location").
A hearing was held on November 22, 1994, at the Administrative Law Judge Division
in Columbia, South Carolina. Notice of the time, date, place and nature of the hearing was
timely given to all parties.
The application was protested by William P. Howze, Jr., who along with his aunt,
Elizabeth Howze, appeared and testified. Mr. Howze wished to be made a party and his
motion was granted.
The application requested by the petitioner is granted with restrictions.
EXHIBITS
Without objection, copies of those portions of the department's file set forth hereafter
were made a part of the record:
1. application by petitioner for on-premise beer and wine permit
2. affidavit of publication of public notice in The Lancaster News for the permit
3. Consent Order signed by Commissioner C. Wilbur Hodge, Jr., of the former
ABC Commission reference In the Matter of James R. McDonald
4. sketch of proposed location
5. two investigation reports by South Carolina Law Enforcement agent Brooks
6. protest letter by Respondent/William P. Howze, Jr.
7. criminal history report
8. correspondence between Petitioner and Respondent/South Carolina Department
of Revenue and Taxation
The petitioner introduced the following which were made exhibits without objection:
1. eight (8) photographs of the location and the general vicinity
2. copy of Order and Decision of Judge Stephen P. Bates, dated October 5, 1994,
in the case entitled Cynthia T. McDonald, d/b/a Crossroads Snack Shop vs. South Carolina
Department of Revenue and Taxation, Docket No. 94-ALJ-17-0225-CC.
3. letter of James W. Mahaffey dated September 19, 1994
4. sketch of the location
5. brochure of Robert J. Cook, Acoustical Consultant, listing projects completed,
biographies on Robert J. Cook and James S. Brawley, and a description of its consulting
services
6. protest letter by Barbara Ann Howze dated November 21, 1994
7. menu
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. The applicant is seeking an on-premise beer and wine permit for a sportsbar
at 1423 North Rocky River Road, Lancaster County, South Carolina.
3. The applicant is over twenty-one (21) years of age, has never had any permit
or license revoked, although she had held as many as fourteen (14) permits at one time from
the former ABC Commission at various locations since 1977 or 1978.
4. Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Lancaster News, a newspaper of general circulation in the local
area where the applicant proposes to engage in business.
5. Notice of the application has been given by displaying a sign for a minimum
of fifteen (15) days at the site of the proposed location.
6. The applicant has been a legal resident of South Carolina for over thirty days
and maintained her principal place of abode in South Carolina for over thirty days.
7. The applicant is of good moral character.
8. The applicant intends to own, operate and manage a sportsbar at the location
seven days a week, twenty-four hours a day, if commercially reasonable. Presently, Linda
and Jerry McManus are the on-premise managers at the location and manage other
businesses for the applicant.
9. The applicant owns the present location having an investment in the building
of approximately $400,000.00.
10. The proposed location has five (5) coin-operated machines and seven computer
tables. Applicant intends to keep video machines and pool tables operational at the proposed
location which has been open since July 1994.
11. There is a grill in the proposed location and hamburgers and short orders are
presently prepared and sold therein.
12. The property is located in a rural area with commercial properties in the
general vicinity at Buford's Crossroads, approximately six (6) miles from the Lancaster
Sheriff's office. Trucks traveling through the intersection near the proposed location and the
Howze residence create a noise problem.
13. William P. Howze, Jr, lives approximately one mile from the location but his
seventy-six (76) year old mother, Mrs. Beulah Howze, lives on one of the corners at the
intersection, caring for a forty-two (42) year old daughter who is handicapped, suffering
from cerebral palsy. Neither he nor any protestant object to the off-premise sale, only to on-premise consumption, expressing concerns about increased noise, safety concerns if patrons
at the proposed location are allowed to drink and become intoxicated and the proposed
twenty-four hour operation.
14. Mrs. Elizabeth Howze, a sister of Mrs. Beulah Howze has the same objections
to the proposed location as Mr. Howze.
15. Mr. Robert J. Cook, who was qualified without objection as an expert witness
in noise measurement and testing, was hired by the applicant to perform tests at the location
on two (2) separate occasions, September 9, 1994 and September 10, 1994.
16. The noise from the location cannot be heard in its parking lot when its exterior
door is closed; the noise comes from trucks and automobiles traveling, passing through and
stopping at Buford's Crossroads.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the
following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1993) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative
Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1993) grants to the Administrative Law
Judge Division the powers, duties and responsibilities as a hearing officer in protested and
contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. Section 61-9-320 (Supp. 1993) sets forth the requirements for
the issuance of an on-premise beer and wine permit which provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1. The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are
of good moral character.
2. The retail applicant is a legal resident of the United States and has been a legal resident of this Sate for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.
3. The applicant, within two years before the date of application, has not had revoked
a beer or a wine permit issued to him.
4. The applicant is twenty-one years of age or older.
5. 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.
6. Notice of application has appeared at least once a week for three consecutive
weeks in 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.
7. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.
4. Although "proper location" is not statutorily defined, broad discretion is vested
in the Division in determining the fitness or suitability of a particular location. Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
5. As trier of fact, an administrative law judge is authorized to determine the
fitness or suitability of the proposed business location of an applicant for a permit to sell beer
and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC
Commission, 316 S.E. 2d 705 (S.C. App. 1984).
6. S.C. Code Ann. §61-9-340 (Supp. 1993) states that upon a determination that
an applicant meets the criteria set forth and has not misstated or concealed a fact in the
application, the S.C. Department of Revenue and Taxation must issue the permit after
payment of the prescribed fee.
7. No churches, schools or playgrounds are within close proximity sufficient to
render the proposed location unsuitable.
8. 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. 335 (1985).
9. 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of
restrictions to permits, provides:
Any stipulation and/or agreement which is voluntarily entered into by
an applicant in writing for a beer and wine permit between the applicant and
the South Carolina Alcoholic Beverage Control Commission, if accepted by
the Commission, will be incorporated into the basic requirements for the
enjoyment and privilege of obtaining and retaining the beer and wine permit
and which shall have the same effect as any and all laws and any and all other
regulations pertaining to the effective administration of beer and wine
permittees.
In the event that evidence is presented to this Commission that any part
of the stipulation or agreement is or has been knowingly broken by the
permittee will be a violation against the permit and shall constitute sufficient
grounds to suspend or revoke said beer and wine permit.
10. Permits and licenses issued by the State for 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. South Carolina Tax Commission, 203
S.C. 49, 26 S.E. 2d 22 (1943).
11. S.C. Code Ann § 61-3-440 (Supp. 1993) states that the Department shall not
issue certain licenses to a place of business within a certain distance of a church, school or
playground; however, locations for which beer and wine permits are requested are not
subject to those specific restrictions.
12. In considering suitability of location, it is relevant to consider previous history
of the location and to determine whether the testimony in opposition to the granting of a
permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 198 S.E.
2d 801 (1973). In this instance the testimony of the protestant and Mr. Howze only consisted
of opinions and their testimony of the claimed detriment to the community in terms of
increased stress due to safety concerns and increased noise levels was not sufficient evidence
for a determination that the proposed business and its location are unsuitable.
13. It is concluded that the applicant meets all of the statutory requirements for
holding an on-premise beer and wine permit with various restrictions, limitations and
conditions as set forth hereafter, and accordingly, I conclude that the proposed location is
a proper one for granting the beer and wine on-premise consumption permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Cynthia T. McDonald for an on-premises beer and
wine permit at 1423 North Rocky River Road, Lancaster, South Carolina, be granted, with
the following restrictions and conditions, upon the applicant signing a written agreement to
be filed with DOR to adhere to the stipulations set forth below:
1. Cynthia T. McDonald and her employees shall prohibit loitering and the
consumption of beer or wine in the parking lot of the proposed location and strictly enforce
the prohibition.
2. The hours of operation will be Monday through Saturday from 10:00 a.m. to
12:00 a.m.
3. All exterior doors at the proposed location shall be kept closed at all times
except when patrons, customers or employees are entering or exiting.
4. No live bands are allowed to perform at the proposed location.
5. Applicant's husband, James R. McDonald may visit the proposed location as
a customer/patron, but is prohibited from having any ownership interest in it or participating
in its management.
6. No outside speakers will be allowed at the proposed location.
IT IS FURTHER ORDERED that a violation of any one of the above conditions is
considered a violation against the permit and may result in a fine, suspension, or revocation.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue
the permit upon payment of the required fees and costs by the applicant.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January 10, 1995 |
