ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
§§ 1-23-310, et seq., (Rev. 1986 & Supp. 1994) upon an application for an on-premises beer and
wine permit and business sale and consumption license for 1021 McIver Road, Darlington, South
Carolina, by George Mazzant filed with the South Carolina Department of Revenue and Taxation
(hereinafter referred to as "DOR"). A hearing was held on June 27, 1995. The license and permit
applications were protested by the Darlington County Sheriff's Department. The issues
considered were: (1) the applicant's eligibility to hold a permit; (2) the suitability of the proposed
business location; and (3) the nature of the proposed business activity. The permit and license
applications are granted, with restrictions.
DISCUSSION
The proposed location is currently operating as a lounge/restaurant under a temporary
beer and wine permit, and was previously operated as such by the late former owner, Jack
Rogers, who held a beer and wine permit and minibottle license. Under the ownership and
management of Jack Rogers, the proposed location was the source of noise, traffic problems, and
crime problems involving drugs and violence. These past problems and the fear that they may
return prompted the Darlington County Sheriff's Department to oppose the Petitioner's
applications for a beer and wine permit and minibottle license, which resulted in this hearing.
Testifying in opposition were Chief Deputy Robin Bryant and Lt. John Purvis of the Darlington
County Sheriff's Department. Petitioner George Mazzant testified in his own behalf, along with
two patrons, Leroy Matthews and Joshua Floyd.
Problems were persistent under Rogers' management, but since Petitioner has taken over
management of the location, problems have been minimal. It is unclear whether the decrease in
disturbances is attributable to Petitioner's style of management or to the fact that fewer customers
are now patronizing the establishment. Because of that uncertainty and because Petitioner should
not be held strictly accountable for past problems at the proposed location which occurred prior
to his involvement with the lounge, the permit and license applied for are granted, with
restrictions. The restrictions placed upon the license and permit are intended to be safeguards for
the neighboring community and to be strictly followed and enforced. This Court trusts that
Protestants and other law enforcement agencies will closely monitor activity at the proposed
location and cite Petitioner for any violations of the law, including any permit/license requirements
and restrictions.
EVIDENTIARY OBJECTIONS
Petitioner raised objections to the inclusion of three documents included in the DOR
agency file materials transmitted to this Court. Specifically, Petitioner objected to admission of
Petitioner's arrest record and written correspondence between Darlington Chief Deputy Robin
Bryant and DOR Director Burnet R. Maybank, III.
Because a contested case proceeding is actually a part of the administrative decision-
making process, the administrative file of the matter in controversy must be incorporated into the
record of the hearing. As a matter of general course in each alcoholic beverage application case,
DOR transmits the agency file containing the application, written protests, a SLED report, and
other correspondence relating to the application, to the presiding judge for inclusion in the hearing
record. In the instant case, and most other ABC application cases, DOR does not appear at the
hearing. It is up to the administrative law judge to review the agency file and all other relevant
evidence. The judge must weigh the credibility, relevancy, and sufficiency of the evidence and
consider only that evidence which is reliable and relevant.
The arrest record is simply a statement of facts recorded pursuant to official duty and does
not contain statements which involve the exercise of judgment and discretion or which are
expressions of opinion. The arrest record is a public record and Petitioner's objection is
groundless. State v. Pearson, 223 S.C. 377, 76 S.E. 2d 151 (1953). Petitioner's hearsay
objection to the Bryant-Maybank correspondence is moot. The letters are irrelevant to the issue
in controversy and were not considered in the final determination of this case.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) The applicant seeks an on-premises beer and wine permit and business sale and
consumption license for a location at 1021 McIver Road, Darlington, South Carolina, having filed
applications with DOR, BW #102514 and AI #102515.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) Applicant is currently operating the proposed location as a lounge and restaurant,
substantially involved in the preparation and service of meals, and intends to continue as such.
(4) The proposed location is currently serving beer and wine pursuant to a temporary
permit issued in March, 1995, and has been previously licensed to sell and serve alcoholic
beverages.
(5) The previous permit and license expired upon the death of the previous
owner/licensee, Jack Rogers.
(6) Petitioner was an employee of Jack Rogers from approximately December, 1994 to
March, 1995, and has operated the proposed location as manager since March, 1995.
(7) Petitioner has approximately three years of experience in the bar and restaurant
business.
(8) The anticipated hours of operation of the proposed location are 10:00 a.m. to
6:00 a.m.
(9) The majority of the proposed location's patrons are shift workers at various
manufacturing plants in the vicinity.
(10) Shift workers generally patronize the proposed location upon ending their shifts,
which may end between the hours of 12:00 midnight and 2:00 a.m.
(11) While under the ownership and management of Jack Rogers, the proposed location
was the site of numerous disturbances involving noise, violence, and/or illegal drugs, requiring the
dispatch of law enforcement personnel.
(12) A murder occurred at the proposed location in 1994, prior to Petitioner's
employment.
(13) Several residences are in close proximity to the proposed location.
(14) The proposed location is in an unincorporated area of Darlington County.
(15) McIver Road is a busy thoroughfare with heavy traffic.
(16) A patrolling sheriff's deputy could respond to a call at the proposed location within
twenty minutes.
(17) Lt. John Purvis of the Darlington County Sheriff's Department lives within 125' of
the proposed location on a secondary road behind the establishment.
(18) Noise from the proposed location caused by live music, car traffic in the parking lot,
and patrons entering and leaving the establishment have disturbed nearby residents.
(19) In the past, the proposed location has had inadequate parking facilities to
accommodate its patrons.
(20) DOR did not appear at the hearing and did not indicate any opposition to the
issuance of the permit or license.
(21) There are no churches, schools, or playgrounds within 500 feet of the proposed
location.
(22) The applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
(23) The applicant has not had a permit/license revoked in the last five years.
(24) The applicant is of good moral character.
(25) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen 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) provides that the South Carolina
Administrative Law Judge Division is empowered 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) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1994) set forth the requirements for
a minibottle license.
(4) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1994).
(5) 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. S.C. ABC Commission, 316 S.E.2d
705 (S.C. App. 1984).
(6) 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).
(8) Applicant meets the statutory requirements for issuance of a beer and wine permit and
minibottle license.
(6) 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.
(7) Permits and licenses issued by the State for the 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).
(8) The proposed location is suitable and proper, in light of the past commercial nature of
the location, the nature of the business, and the restrictions on the license contained in this Order.
(9) Applicant meets the statutory requirements for issuance of a beer and wine permit and
minibottle license.
(10) Pursuant to ALJD Rule 29(B), all issues raised in these proceedings not expressly
addressed in this Order are deemed denied.
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit application
and business sale and consumption license 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) The licensee must not sell, serve, or allow the possession or consumption of
beer, wine, or liquor on the licensed premises during the hours of 3:00 a.m. to 10:00
a.m.
(2) The licensee must not sell, serve, or allow possession or consumption of beer,
wine, or liquor on any part of the business location except for the indoor area of the
licensed premises.
(3) Live music is prohibited on the licensed premises during the hours of 12:00
midnight and 10:00 a.m.
(4) Licensee must provide adequate parking for patrons and prevent patrons
from parking on the roadway, the road right-of-way, or neighboring lots.
IT IS FURTHER ORDERED that a violation of any of the above conditions is
considered a violation against the permit and/or license and may result in a fine, suspension, or
revocation.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July ____, 1995
Columbia, South Carolina |
