SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55, et seq. (Supp. 1994) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 1994) for a hearing pursuant to the application of Shirley A. Crawford, d/b/a Club Elite, ("applicant") for an on-premise beer and wine permit (AI 99512) at Route 2, Box 562, Secession Avenue, Abbeville, Abbeville County, South Carolina ("location").

A hearing was originally scheduled on February 27, 1995, at the Anderson County Courthouse but was continued upon request of Petitioner for leave to obtain counsel. The hearing was held at the Administrative Law Judge Division, Hearing Room #2, Columbia, South Carolina on May 9, 1995. Three protestants, Mary Jane Goodwin, Johnny Goodwin and Emma Goodwin, upon written motion, were made parties. The issues considered were: 1) the suitability of the proposed location, and 2) the nature of the proposed business activity.

The application was protested by the three intervenors and various members of the Long Cane AME Church, with one intervenor, Mary Jane Goodwin, and three other protestants, Abbeville County Sheriff Charles Henry Goodwin, Kenneth E. Robinson and Reverend Annie Mae Wims all appearing and testifying against the permit issuance. The South Carolina Department of Revenue ("Department") was not represented at the hearing.

The application request by the petitioner is denied.

EXHIBITS

Without objection, all parties stipulated to the certified portions of the Department's file sent to and received by the Administrative Law Judge Division being made a part of the record in this case. Further, the Intervenors placed into the record, without objection, as their Exhibit #1 an aerial photograph of the general vicinity in which the proposed location is situated.

FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties, including the protestants.

3. The applicant is seeking an on-premise beer and wine permit for a club called Club Elite, located at Route 2, Box 562, Secession Avenue, Abbeville, Abbeville County, South Carolina.

4. The applicant is over twenty-one (21) years of age.

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

6. 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.

7 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.

8. The applicant is of good moral character.

9. The applicant has never had a beer and wine permit or mini-bottle license revoked.

10. The applicant intends to own, operate and manage the club, preparing and selling short-orders of food along with beer and wine. She intends to continue working at a textile plant, operating the club on Fridays from 6:00 p.m. to 2:00 a.m., on Saturdays from 6:00 p.m. to 1:00 or 2:00 a.m. with no beer or wine sales after midnight, and such other times allowed when she is not working her textile job.

11. Applicant's uncle, Thomas Lee Aiken, owns the location which consists of approximately four (4) acres of land. On the property sits an old log cabin with a modular building (formerly a school classroom) attached to it. He formerly lived there, held a retail license as a restaurant for ten (10) years and held private parties. He intends to make himself available to assist applicant in the operation.

12. The location, although in a rural area and outside the municipal limits of Abbeville, South Carolina, is situated in a residential community where no commercial establishments are located. There are three churches within one mile, ten (10) residences within three hundred feet (300') and ten to fifteen (10-15) children living in close proximity.

13. The location is subject to county law enforcement. Abbeville County has thirteen (13) road deputies who patrol the county, three per shift, one in each zone. Each deputy averages driving two hundred to two hundred twenty-five (200-225) miles per shift in his zone. There is not adequate law enforcement in the county to provide security at this location considering the existing demands on law enforcement, including numerous other clubs currently operating in the county.

14. The location is zoned "general residential" by the County of Abbeville and a zoning change would be required to allow the operation of a club serving food and alcoholic beverages there.

15. Concerns raised by the intervenors and protestants are: loud noise, parking in neighbors' yards, littering, safety of children and traffic congestion. The theme running through their testimony was a desire to protect the tranquility of their residential community and keep it safe for them and their families.

16. Applicant intends to have music at the location but no video or gaming machines.

17. In the past when applicant's uncle held "private parties" at the location, guests parked along the highway, there was loud noise, car tires squealed as guests left and there was litter strewn along the highway and in neighbors' yards.

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 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.

4. 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.

5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). 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). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

6. 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). 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location

may be found to be unsuitable and a permit denied. William G. Byers v. South Carolina ABC Commission, ____ S.C. ____, 407 S.E. 2d 653 (1991).

7. 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, testimony of the intervenors and protestants all supports the conclusion that the granting of a permit for on-premise beer and wine consumption at the location would be a detriment to the community.

8. It is concluded that the applicant has not carried her burden of proof in establishing that she has met all the statutory requirements for the issuance of the on-premise beer and wine permit. The club's closeness in proximity to churches and residences, unlawful zoning and the lack of adequate law enforcement which would increase stress in terms of residents' safety, are all sufficient factors indicative of an unsuitable location and unsuitable business activity.

9. Accordingly, it is concluded that the proposed location is not a proper one for the granting of an on-premise beer and wine permit.

ORDER

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

ORDERED that the application of Shirley A. Crawford, d/b/a Club Elite for an on-premise beer and wine permit at Route 2, Box 562, Secession Avenue, Abbeville, Abbeville County, South Carolina be denied.

AND IT IS SO ORDERED.

________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

May 25, 1995