SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55 (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 Harry B. Grymes and Evelyn H. Garrick, d/b/a The Hare and The Hound, ("applicant") for an on-premises beer and wine permit (AI 99570) at 101 E. Rutherford Street, Landrum, Spartanburg County, South Carolina ("location").

A hearing was held on December 20, 1994, at the Spartanburg County Courthouse, Spartanburg, South Carolina. Notice of the time, date, place and nature of the hearing was timely given to all parties including the protestants.

The application was formally protested by the Reverend Jerry W. Long, Pastor of the First Baptist Church, Landrum, South Carolina; also present at the hearing were others protesting the issuance of the permit. The protestants who testified were Reverend Long, Michael Rand McClure and Henry Coley, Pastor, Calvary Baptist Church, Cowpens, South Carolina. None of the protestants wished to be made a party. The protestants objected to the grant of the permit in that the location was too close to an intersection where there is heavy traffic flow in the town of Landrum and its potential contribution to an already hazardous area. Both petitioners testified as well as two others in favor of granting the application request.

The South Carolina Department of Revenue and Taxation ("Department") took no position as to the grant/denial of the permit and had no representatives at the hearing.

The permit request by the petitioners is granted.

EXHIBITS

Without objection, unless noted, 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-premises beer and wine permit with rental agreement

2. affidavit of publication notice in The News Leader for the permit

3. partnership agreement

4. sketch of proposed location

5. investigative report by SLED dated September 12, 1994

6. protest by Reverend Jerry W. Long, Pastor, First Baptist Church, Landrum, South Carolina (excluded as evidence is the 1990 statistical data statement contained therein)

7. criminal history report from Anderson County and Spartanburg County

8. correspondence between petitioners and respondent/Department of Revenue and Taxation

At the hearing, a petition signed by various individuals was entered into evidence by the petitioners as exhibit #1.

Reverend Jerry Long placed into evidence two (2) exhibits as follows:

1. protestant exhibit #1 - chart showing a sketch of the location. Excluded as evidence were references therein to traffic congestion and statistical data at the location.

2. protestant exhibit #2 - six (6) photographs of downtown Landrum, South Carolina.

An effort by Reverend Long to place into evidence a Spartanburg Area Transportation Study was denied.

SUMMARY OF THE TESTIMONY

Mrs. Evelyn H. Garrick, one of the petitioners, testified first, stating she lives in Easley, South Carolina with her husband and together they own three (3) drugstores and one (1) restaurant. She state she operates the restaurant in Landrum, South Carolina with her son-in-law, Harry B. Grymes, co-petitioner, as a family restaurant, with hours Monday through Saturday from 11:00 a.m. through 9:00 or 10:00 p.m. ( the later hour during the summer). She stated it is not a bar but to is be operated similar to an Applebee's or California Dreaming restaurant where children are welcome. She stated the investment at the location is already in excess of $100,000.00. She further stated that she and her husband are active in the First Baptist Church, Easley, South Carolina. She also testified that there is sufficient parking to accommodate the restaurant, there being approximately two hundred (200) people now served daily. Further, she stated that there has been no objection by the local chief of police nor the downtown merchants association.

Harry B. Grymes, co-petitioner testified next, stating he is twenty-six (26) years of age, opened the restaurant at its location in November, 1994, is an active manager and has worked in restaurants and bars while in college at the University of South Carolina. He stated he is familiar with ABC laws and regulations. He stated there is ample parking at the front and side of the location. Further, he said the restaurant will seat seventy-eight (78) people with most of its business being lunch traffic.

Mrs. Rebecca Davis, a resident of Landrum, South Carolina, who has owned and managed a restaurant there since May, 1994, testified that there have been no parking problems at the location since its opening and she foresees none in the future. She stated she serves fifty to one hundred (50-100) people daily at her restaurant. Further, she stated she had heard of no protests except from the protestants.

Mrs. Julia Fasnacht, a resident of Gowensville, South Carolina, and a patron of the restaurant testified in favor of granting the permit, stating she has seen no parking problems there.

The first protestant to testify, Michael Randy McClure, a thirty-nine (39) year old gentleman who lives with his wife and two (2) children in Landrum, South Carolina and is a member of its First Baptist Church, stated he is morally opposed to drinking. He stated that where alcohol is available too much will be consumed and as a result, some of his family members could be involved in an accident caused by someone driving under the influence. Henry Coley, a resident of Landrum and pastor of Calvary Baptist Church, Cowpens, South Carolina testified he was morally opposed to alcohol consumption and that he would like to have every restaurant in South Carolina that sells alcohol closed. He further protested based upon an increased traffic and parking problems in Landrum if the permit is granted.

Reverend Jerry Glenn Long, pastor of the First Baptist Church of Landrum, South Carolina, testified last, also protesting the issuance of the permit. Generally, he testified that the town of Landrum has limited parking available and the increased patrons at the restaurant contribute to an already congested location. Also, he stated that patrons who drink alcoholic beverages would be impaired and contribute to the traffic problem. He conceded that the community cash grocery store across the street from the store has an off-premises beer and wine permit.

By a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. The applicants are seeking an on-premises beer and wine permit for a restaurant at 101 E. Rutherford Street, Landrum, Spartanburg County, South Carolina.

3. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The News Leader, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

4. 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.

5. The applicants have been legal residents of South Carolina for over thirty days and maintained their principal places of abode in South Carolina for over thirty days.

6. The applicants are of good moral character.

7. The applicants are over twenty-one (21) years of age and have never had an application revoked within the two (2) years preceding the date of the filing of this application.

8. The applicants intend to own, operate and manage the location as a family restaurant, not as a bar or sportsbar.

9. The applicants intend to operate the restaurant at the location between the hours of 11:00 a.m. and 10:00 p.m., Monday through Saturday. The restaurant will be closed on Sunday.

10. The First Baptist Church is located approximately 1/10 mile in distance from the location.

11. The location is in a commercial area.

12. There are no juke boxes, video machines or pool tables at the location nor do the applicants have live bands or live music.

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 a 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 wholesale applicant is a legal resident of the United States and has been a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4. The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

5. The applicant is twenty-one years of age or older.

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.

7. 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.

8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.

The applicant meets all the statutory requirements set forth above and has made an adequate showing on each of the above state grounds for issuance of the permit.

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 a 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. Little weight as evidence was given to the petition (exhibit #1) of the petitioner in that the individuals whose signatures were thereon were unavailable to offer testimony nor were they available for cross-examination.

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. 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).

10. 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.

11. 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 protestants only consisted of opinions as to the creation of or contribution to a hazardous traffic problem at the location. There was not sufficient testimony nor evidence presented by the protestants to show that the location is unsuitable, is not a fit location or that it would create additional traffic congestion sufficient to create stress in terms of the residents' safety.

12. It is concluded that the applicant meets all of the statutory requirements for holding a retail beer and wine permit and accordingly, I conclude that the proposed location is a proper one for granting the beer and wine permit.

ORDER

Based upon the Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Harry B. Grymes and Evelyn H. Garrick for an on-premises beer and wine permit at 101 E. Rutherford Street, Landrum, Spartanburg County, South Carolina be granted, with the following restrictions and conditions, upon the applicants signing a written agreement to be filed with DOR to adhere to the stipulations set forth below:

1. The hours of operation at the location will be between 11:00 a.m. and 10:00 p.m., Monday through Saturday.

2. No juke boxes, video machines, pool tables or live music/bands will be allowed at the location.

3. The restaurant shall retain its identity as a family oriented restaurant.

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 19, 1995