South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Rose M. Chase and Joel A. Hendrix, Jr., d/b/a Rose's Place vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Rose M. Chase and Joel A. Hendrix, Jr., d/b/a Rose's Place

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0069-CC

APPEARANCES:
Timothy G. Quinn, Esquire

Attorney for the Petitioner

S.C. Department of Revenue and Taxation

Respondent (Not present at the hearing)

Protestants (Pro Se):

Martha L. Walls

Estelle Livingston

Jerry Wright, Chief Deputy

Newberry County Sheriff's Department
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 1994) for a hearing pursuant to the application of Rose M. Chase. The applicant seeks an on-premises beer and wine permit (AI 100984) for a community grocery store/game room located at 2416 South Carolina Highway 34-121, Newberry County, South Carolina.

After timely notice to the parties and the protestants, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina. Three protestants of record appeared, Martha L. Walls, Estelle Livingston, and Jerry Wright, Chief Deputy Newberry County Sheriff's Department. No protestant moved to intervene as a party. The issues considered at the hearing were: (1) the applicant's eligibility to hold a beer and wine permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity.

The application for an on-premises beer and wine permit is hereby granted, with restrictions.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. The applicant seeks an on-premises beer and wine permit for a community grocery store/game room located within the county of Newberry at 2416 South Carolina Highway 34-121.

2. The South Carolina Department of Revenue and Taxation's ("DOR") file was made a part of the record by reference with the consent of the petitioner and the protestants.

3. The proposed location is situated approximately twelve (12) miles outside the city of Newberry at the intersection of South Carolina Highway 121 and South Carolina Highway 34. 4. The area surrounding the proposed location is predominantly residential in nature.

5. No church, school, or playground is within close proximity to the proposed location.

6. Nell Long previously held an on-premises beer and wine permit at the proposed location, d/b/a Nell's Bait and Tackle, for approximately two months in 1994, until her death.

7. The proposed location is leased to the applicant by Ralph Bishop, the husband of Nell Long.

8. The applicant lives in a home located directly in the rear of the premises.

9. The applicant has never held a beer and wine permit or other license for the sale or consumption of alcoholic beverages, prior to being issued the temporary permit which she now holds.

10. Based on the testimony of protestant, Estelle Livingston, and her statement in a letter dated December 6, 1994, she has "little or no objection to the selling of closed containers."

11. Press Livingston, brother-in-law of Estelle Livingston and uncle of Martha Livingston Walls (protestants), held an off-premises beer and wine permit for several years at the proposed location prior to Nell Long's purchase of the building.

12. The applicant is currently operating the proposed location as a community grocery store which serves food, with hours of operation on Monday through Saturday from 6:00 a.m. to 12:00 a.m. and closed on Sundays. The community grocery store also has a game room on one side of the building with video poker machines and various gaming tables, such as pool tables.

13. There were approximately eleven (11) residents from the vicinity of the proposed location present and available to testify in support of the petitioner's application.

14. Deputy Sheriff Charles F. Wilbanks, Jr. of the Newberry County Sheriff's Department, along with local residents Estelle Livingston and Martha L. Walls, testified in opposition to the application. As justification for denial of the beer and wine permit, the protestants cited (1) the character of the applicant's spouse, who was convicted for trafficking LSD in 1986 and possession of marijuana in 1995; (2) problems with noise emanating from the proposed location because patrons loiter outside; (3) gun shots late at night when turkey shoots are held at the proposed location; and (4) public safety concerns because patrons have been allowed to leave the establishment intoxicated.

15. The Newberry County Sheriff's Department has been called to the proposed location at least fourteen (14) times in the six (6) months Rose's Place has been open for business and at least five (5) arrests have been made. The Newberry County Sheriff's Department does not have adequate law enforcement personnel to provide such protection in this community.

16. The applicant has erected a five foot fence along one side of her property which separates the proposed location from the property of the protestants, Estelle Livingston and Martha L. Walls, to prevent her patrons from parking on the protestants' property.

17. Martha L. Walls' property and Estelle Livingston's property are located approximately 200 feet and 400 feet, respectively, from the proposed location.

18. The applicant currently has a "no loitering" sign erected at the proposed location.

19. Loitering has occurred at the proposed location which results in noise that disturbs the neighboring protestants.

20. On numerous occasions, the applicant or her employees drove patrons home or arranged rides home for those who had "too much" to drink.

21. South Carolina Highway 34-121 is a heavily traveled highway and vehicles entering the highway operated by individuals who have been drinking excessively poses a safety hazard.

22. The applicant holds turkey shoots at her business.

23. The applicant is of good moral character.

24. The applicant will operate and manage the community grocery store/game room.

25. The applicant's former spouse, David Chase, will not be involved in the management or day-to-day operation of the business, due to his criminal record.

26. Joel A. Hendrix, who has a criminal record and was the initial partner of Rose M. Chase, no longer has a partnership interest in the proposed location.

27. The applicant is at least 21 years of age, a U.S. citizen, a citizen of the State of South Carolina, and has maintained her principal residence in the state for at least thirty (30) days prior to the date of making application for an on-premises beer and wine permit.

28. Notice of the application appeared in The Newberry Observer, a newspaper of general circulation in the area of the proposed location, for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following: 1. S.C. Code Ann. § 61-1-55 (Supp. 1994) authorizes the South Carolina Administrative Law Judge Division to hear this case pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance of a beer and wine permit.

3. 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).

4. As the 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. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5. 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.2d 335 (1985); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. When evidence establishes that the sale of beer and wine is likely to be detrimental to the public interest because of the unavailability of adequate law enforcement, there exists sufficient basis for the denial of the permit. Moore v. South Carolina. ABC Comm'n, 308 S.C. 167, 417 S.E.2d 557 (1991).

7. "A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).

8. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are 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. 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 permits and 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.

DISCUSSION

S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria to be satisfied for the issuance of a beer and wine permit. Of those criteria, the suitability of the proposed location is in dispute in the instant case. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). A major factor considered in a suitability determination is whether the manner of conducting the business is conducive to the general welfare of the community. 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).

As it relates to the nature and manner of conducting the business, the applicant promotes her business as a family oriented business where the young and old frequent. The applicant also characterizes her business as a community grocery store/game room. Therefore, this tribunal finds it perplexing when the applicant and her employees paradoxically offered testimony that on numerous occasions they either personally drove home or arranged rides for patrons who had "too much" to drink.

It is further evident from the record that loitering occurs outside the applicant's establishment, which results in noise that disturbs the nearby residents. The sheriff's department offered evidence that it does not have adequate "manpower" to provide law enforcement protection to the proposed rural location, as it received fourteen (14) "incident calls" concerning activities arising at the location since October of 1994. Further, the sheriff's department offered testimony that the highway on which the proposed location is located is heavily traveled and this creates a traffic danger because of the nature of the applicant's business.

The determination of suitability of a location involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In the instant case, it is evident from the record that the later the hours of operation, the more the applicant's business resembles a bar or saloon, and resembles less a family oriented community grocery store/game room. Consequently, the applicant's business location is not a suitable location for an on-premises beer and wine permit if the current nature and mode of operation is sustained.

The factual determination of whether or not a permit is granted or rejected is usually the sole prerogative of this tribunal. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); Ronald F. Byers v. South Carolina ABC Comm'n , 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Accordingly, it is within the discretion of this tribunal to grant a permit with restrictions if such restrictions would sufficiently curtail or alleviate any adverse impact on the community or strain on law enforcement. Id. See also Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943); 23 S.C. Code Ann. Regs. 7-88 (1976). Furthermore, this tribunal found the applicant to be a person of good repute with her neighbors in the community and willing to address neighbors' concerns as they might arise from the operation of the business. It was also found that this applicant was willing to make accommodations to promote the compatible coexistence of her business with the members of the community. Thus, if the applicant is willing to modify the current nature and mode of operation of her business, she could render the location suitable. In order to alleviate the adverse impact on the community and the strain on law enforcement, the nature and mode of operation of the proposed location must be modified. The nature and mode of operation can be modified through adherence by the applicant to the stipulation and restrictions set forth herein.

STIPULATION

The applicant agrees, as a condition to the issuance of an on-premises beer and wine permit, that turkey shoots will no longer be held at the proposed location.

ORDER

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

ORDERED that the application of Rose M. Chase for an on-premises beer and wine permit for a location at 2416 South Carolina Highway 34-121, county of Newberry, South Carolina, be granted upon the applicant signing a written agreement to be filed with DOR to adhere to the stipulation set forth above and the following restrictions:

1. The applicant's former spouse, David Chase, may not participate in the management or day-to-day operation of Rose's Place. Further, he may not serve as an employee or agent of the applicant in any capacity, paid or otherwise, as it relates to the permitted premises. 2. Joel A. Hendrix may not have any partnership or other ownership interest in Rose's Place or participate in the management or day-to-day operation of Rose's Place. Further, he may not serve as an employee or agent of the applicant in any capacity, paid or otherwise, as it relates to the permitted premises.

3. The applicant's hours of operation may not extend beyond 9:00 p.m. That is, the applicant shall not open for business beyond 9:00 p.m.

4. The applicant shall strictly prohibit customers at the community grocery store/game room from loitering outside.

5. The applicant shall not allow excessive noise to emanate from the proposed location.

IT IS FURTHER ORDERED that a violation of the stipulation or any of the above restrictions 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 an on-premises beer and wine permit upon payment of the required fee(s) and cost(s) by the applicant.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Edgar A. Brown Building

1205 Pendleton Street

Columbia, South Carolina 29201



April 26, 1995


Brown Bldg.

 

 

 

 

 

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