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 Clifton E. Guyton, d/b/a
C & N Sports Bar, ("applicant") for an on-premise beer and wine permit (AI 101229) at 1299
W. Market Street, Anderson, Anderson County, South Carolina ("location").
A hearing was held on February 27, 1995, at the Anderson County Courthouse,
Anderson, South Carolina. Notice of the time, date, place and nature of the hearing was
timely given to all parties and the one protestant, the City of Anderson police department.
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 City of Anderson police department, with David
Riddleberger, Jack Sanders and John Barry appearing and testifying on its behalf. The City
of Anderson wished to be made a party and its motion was granted. The South Carolina
Department of Revenue and Taxation ("Department") was not represented at the hearing.
The application requested by the Petitioner is granted.
EXHIBITS
Without objection, certified 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, rental agreement
and source of funds statement (with attachments)
2. affidavit of publication notice in The Anderson Independent-Mail
3. sketch of proposed location
4. investigative report by SLED
5. criminal history report from SLED
6. protest letter by the City of Anderson police department
Also, the Petitioner introduced into the record as evidence five (5) exhibits and the
Respondent/City of Anderson, introduced into the record as evidence two (2) exhibits.
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 1299 W. Market Street, Anderson, Anderson County, South Carolina.
3. The applicant is over twenty-one (21) years of age.
4. Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Anderson Independent-Mail, 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 his principal place of abode in South Carolina for over thirty days.
7. Applicant is retired from Owen-Fiberglass Corporation and opened this
sportsbar in October 1994. Applicant's location has pool tables and a juke box and he is
renovating a room into a kitchen.
8. Applicant and the patrons are in the 45-65 age group and the music is of that
era. Applicant was credible in his appearance and answering of questions.
9. The applicant is of good moral character.
10. The applicant has never had a beer and wine permit or mini-bottle license
revoked.
11. There are no schools, playgrounds or churches within close proximity to the
proposed location.
12. The proposed location is within municipal boundaries, in a mixed commercial
and residential area.
13. There was testimony by City of Anderson police officers and an Alcohol and
Tobacco agent about the prior history of the location while it was operated as Mattison's
Game Room and Lounge. Specifically, the officers testified to drug sales in the parking lot
and inside the location, gun seizures, assaults and drug-related arrests. Since the location is
on the City of Anderson/County of Anderson line and there is no cooperation between the
respective law enforcement departments, jurisdictional problems exist in policing the area.
However, there have been no complaints made to law enforcement from or about the location
since its opening by the applicant.
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.
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. 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. No churches, schools or playgrounds are within the prescribed proximity to
render the proposed location unsuitable.
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).
7. 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).
8. There has been no credible showing that the present location is unsuitable, is
not a fit location, that it would increase stress in terms of the resident's safety, or create
traffic problems.
9. 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.
10. 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).
11. It is concluded that the applicant meets all of the statutory requirements for
holding an on-premise 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 above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Clifton E. Guyton, d/b/a C & N Sportsbar for an
on-premise beer and wine permit for the premises located at 1299 W. Market Street,
Anderson, Anderson County, South Carolina is granted.
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
March 14, 1995 |