ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing.
Petitioner Patricia Morgan seeks an on-premises beer and wine permit for an establishment to be
located at 3683 Moorefield Memorial Highway near Pickens, South Carolina. The South Carolina
Department of Revenue (Department) would have granted the permit but for the protest filed by
Assistant Sheriff Timothy Morgan on behalf of the Pickens County Sheriff’s Office regarding the
suitability of the proposed location. Accordingly, the Department was excused from appearing at the
hearing of this matter.
After timely notice to the parties and the protestant, a hearing of this case was held on August
22, 2003, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the
evidence presented regarding the suitability of the proposed location and upon the applicable law, I
find that Petitioner’s application for an on-premises beer and wine permit should be granted.
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.On or about March 20, 2003, Petitioner Patricia Morgan submitted an application to
the Department for an on-premises beer and wine permit for an establishment to be located at 3683
Moorefield Memorial Highway, Pickens, South Carolina. Without objection, this application and the
Department’s file on the application were made a part of the record by reference.
2.Petitioner is a person of good moral character and has no record of any criminal
convictions. Further, Petitioner has no record of violating the laws governing the sale of alcoholic
beverages, and has not had a beer and wine permit issued to her suspended or revoked.
3.Petitioner is at least twenty-one years of age, is a legal resident and citizen of the
United States, and is a legal resident and citizen of the State of South Carolina. In addition,
Petitioner resides and maintains her principal place of abode in South Carolina, and did so for at least
thirty days prior to making her application for a beer and wine permit.
4.Notice of Petitioner’s application was published in The Pickens Sentinel, a newspaper
with general circulation in Pickens County, for three consecutive weeks, and proper notice of the
application was posted at the proposed location for fifteen days.
5.Petitioner seeks to open a tavern, to be known as the Ramshack Bar, at the proposed
location. The bar will offer beer and wine for on-premises consumption. While the proposed location
has been operated as a business in the past, including operation as a Bay gas station, the location is
not currently open for business and has not been operated as a business in the past ten years. There
is no evidence that the location has been licensed for the sale of alcoholic beverages in the past.
6.The proposed location is situated along Highway 178, which is locally known as
Moorefield Memorial Highway, in a rural area of Pickens County. This stretch of Highway 178
running between the City of Pickens and the North Carolina border is sparsely populated, and the
proposed location is surrounded primarily by wooded areas. While there are two residences within
five hundred feet of the proposed location, the nearest church is approximately one mile from the
location and the closest school is over three miles away from the location. The nearest businesses
are also some three to four miles away from the proposed location.
The proposed location is approximately four miles north of downtown Pickens and roughly
five miles from the Pickens County Law Enforcement Center. Petitioner calculated the travel time
between the Law Enforcement Center and the proposed location to be approximately eight minutes.
7.The Pickens County Sheriff’s Office (Sheriff) raised three primary objections to the
issuance of the permit requested by Petitioner. First, the Sheriff has concerns regarding the parking
for the proposed business. Specifically, the Sheriff noted that the limited parking in front of the
building–the primary parking area for the business–creates a traffic hazard on Highway 178 by
extending into the highway right-of-way and by requiring drivers leaving the establishment to back
out into the highway with poor visibility of oncoming traffic. Second, the Sheriff has concerns
regarding the structure that will house the proposed business. In particular, the Sheriff noted
potential problems with some of the electrical wiring and plumbing on the rear exterior of the
building.
Third, the Sheriff raised a general lack of law enforcement resources in Pickens County as a
ground for the denial of the requested permit. Based upon national FBI data for 2001 and its own
research on South Carolina, the Sheriff discovered that rural counties nationally averaged about 2.5
law enforcement officers per 1,000 residents in 2001 and that rural counties in South Carolina of
similar size to Pickens County had between 2.47 officers and 1.30 officers per 1,000 residents in
2002. The Sheriff further testified that Pickens County only has 1.08 law enforcement officers per
1,000 residents. However, beyond this general data regarding the number of law enforcement officers
in Pickens County, the Sheriff did not produce any evidence to suggest that the proposed location,
in particular, would suffer from a lack of police protection or that the location is otherwise
inaccessible to law enforcement.
8.In response to the Sheriff’s objections, Petitioner testified that she has secured
permission for additional parking to the rear of the proposed location, produced a copy of a recent
Fire and Life Safety Inspection of the premises by the Pickens County Building Code Administration,
and reiterated the relative proximity of the proposed location to the City of Pickens and the Pickens
County Law Enforcement Center.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the Administrative Law Judge Division
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2002).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C.
Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see
also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.S.C. Code Ann. § 61-4-520 (Supp. 2002) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the proposed location be a
proper and suitable one. See id. § 61-4-520(6)-(7).
4.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness and suitability of a particular location for the requested permit.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5.The determination of suitability of location is not necessarily a function solely of
geography. Rather, 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. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6.In determining whether a proposed location is suitable, it is proper for this tribunal to
consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324,
338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
7.“[A] liquor license or permit may be properly 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.However, without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. And, the fact that the issuance
of a permit or license is protested is not a sufficient reason, by itself, to deny the application. See id.
§ 119.
9.In making a decision in this matter, this tribunal is constrained by the record before it
and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria enacted
by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit, and
there has not been a sufficient evidentiary showing that the proposed location is unsuitable for
Petitioner’s business or that the issuance of the permit would create problems in or have an adverse
impact on the surrounding community. Most of the concerns raised by the Sheriff in opposition to
the proposed permit are more appropriately addressed to county regulatory authorities rather than to
this tribunal. For example, the Sheriff’s concerns regarding the electrical and plumbing systems of
Petitioner’s building would be more suitably addressed to the regulatory authority of the Pickens
County Building Codes Administration than to the alcoholic beverage licensing authority of this
tribunal. Similarly, concerns with patrons parking their vehicles on the highway right-of-way or
otherwise parking illegally at the proposed location are more appropriately handled by the traffic
enforcement powers of local law enforcement rather than by this tribunal’s licensing responsibilities.
Moreover, to the extent it is appropriate for this tribunal to consider the parking situation at the
location, it appears that the proposed location has adequate parking and there is no evidence to suggest
that vehicles entering the highway from the location in the past–for example, during its prior operation
as a gas station–have caused traffic problems on Highway 178.
Finally, the Sheriff’s concerns regarding the lack of law enforcement resources in Pickens
County are too general to constitute a ground upon which to deny Petitioner’s license. While the
Sheriff produced evidence indicating that the number of law enforcement officers per capita in
Pickens County is less than the national average for rural counties and less than that of other, similarly
counties in South Carolina, he did not demonstrate that the number of law enforcement officers in
Pickens County is insufficient to provide adequate police protection for the proposed location. In
fact, the entirety of the Sheriff’s testimony on this point concerned law enforcement numbers for the
county as a whole and did not in any way address the particular location of Petitioner’s proposed
business. Moreover, there is no evidence in the record to suggest that the operation of Petitioner’s
proposed business will require an inordinate amount of police protection. Therefore, while it is clear
that the number of law enforcement officers in Pickens County is below average, it is by no means
clear that these officers lack the resources to provide sufficient police protection to an establishment
situated on a major highway less than four miles from the county seat.
10.In sum, while this tribunal is respectful of the Sheriff’s opposition to the requested
permit, the arguments and evidence proffered by the Sheriff do not constitute a sufficient basis upon
which to deny Petitioner’s application. Rather, many of the Sheriff’s concerns would be more
appropriately addressed by county government authorities than by this tribunal.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department continue to process Petitioner’s
application for an on-premises beer and wine permit for the premises located at 3683 Moorefield
Memorial Highway, Pickens, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
August 25, 2003
Columbia, South Carolina |
