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 on the application of Tom K.
Pate. Petitioner seeks an on-premises beer and wine permit (AI 103810) for a game room
located at 403 Broad Street, Sumter, 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. Several protestants of record
appeared at the hearing. The protestants did not move to intervene as parties. The issues
considered at the hearing were: (1) the Petitioner'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 on-premises beer and wine permit is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony 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. Petitioner seeks an on-premises beer and wine permit for a game room located at
403 Broad Street, Sumter, South Carolina.
2. Petitioner's application to the South Carolina Department of Revenue and Taxation
("Department") was made a part of the record by reference.
3. The proposed location is located in a strip complex within a commercial area of
Sumter, South Carolina. The strip complex is situated directly off of Broad Street, a four lane
major thoroughfare. There are other businesses in the immediate vicinity of the proposed
location: Hamm's Jewelry, Newton's Greenhouse, Napa Auto Parts, a dry cleaners, a beauty
shop, a discount pet food store, Keepsakes and Collectibles, Meineke Muffler, and Shuler's
Custom Framing.
4. No church, school, or playground is within close proximity to the proposed
location.
5. A residential community is located on Carolina Avenue, a street which is parallel
to Broad Street.
6. The proposed location previously held an off-premises beer and wine permit while
operating as a seafood market which also sold convenience items.
7. Petitioner operates and manages the proposed location as a game room which is
open for business Monday through Saturday.
8. Petitioner leases the proposed location from John Hinks, d/b/a Hinks Company,
Inc.
9. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of the Petitioner. The SLED report revealed no criminal violations that imply the
absence of good moral character.
10. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained his 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.
11. Petitioner has held several beer and wine permits and minibottle licenses, with no
violations. Petitioner currently holds a beer and wine permit for another game room in Sumter,
South Carolina. Petitioner has not had a permit or license for the sell of alcoholic beverages
revoked within the past two years.
12. Notice of the application appeared in The Item, 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.
13. The Department did not oppose the application, as evidenced by its failure to
appear at the hearing.
14. Several protestants testified in opposition to the application. The following
problems were associated with the location when it was previously permitted with an off-premises
beer and wine permit and cited by the protestatnts as justification for denial of the application: (1)
excessive litter; (2) outside public consumption; and, (3) public urination on the premises.
Protestants also cited the proximity of the proposed location to a residential neighborhood on
Carolina Avenue, which parallels Broad Street, as a ground for not issuing the permit. Further,
the protestant, the city of Sumter, cited a concern that the proposed location would burden law
enforcement because of excessive service calls.
15. The city of Sumter proffered evidence through Detective Sergeant Douglas
Branham that 11 service calls had been made to the complex in which the proposed location is
situated, since July of 1995. The proposed location is housed in a strip complex which contains
four other similar businesses. The nature of these service calls involved the reporting of
suspicious persons, unattended vehicles left on the lot, an accident, one person suspected of
attempting to pass counterfeit currency, forgery, and one person causing a disturbance. Of these
service calls, only one resulted from a disturbance.
STIPULATIONS
1. Petitioner agrees, as a condition to the issuance of a beer and wine permit, that he
will not allow patrons of the proposed location to loiter on the outside of the premises.
2. Petitioner agrees, as a condition to the issuance of a beer and wine permit, to
construct a 6' high chain link fence along the back property line boundary and the left boundary
property line (facing the building).
3. Petitioner agrees, as a condition to the issuance of a beer and wine permit, to
install flood lights to illuminate the area behind the building, if a SLED Agent determines this is
necessary to provide adequate lighting.
CONCLUSIONS OF LAW AND DISCUSSION
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) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
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 Administrative Law Judge 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. Petitioner meets all of the criteria enacted by the South Carolina General
Assembly for the issuance of an on-premises beer and wine permit. The protestants find the
issuance of a beer and wine permit to Petitioner objectionable mainly because of problems
associated with the location when it was previously permitted with an off-premises beer and wine
permit. As to the protestants' concerns of excessive litter, outside public consumption of beer and
wine, and loitering of patrons, Petitioner has agreed to control loitering on the property by its
patrons and Petitioner has also agreed to install a 6' high chain link fence along the back property
line boundary and the left boundary property line (facing the building). Further, Petitioner has
agreed to install flood lights to illuminate the area behind the building, if a SLED Agent
determines this is necessary to provide adequate lighting. These measures should adequately
prevent the aforementioned problems from reoccurring. Also, the type of permit being sought,
on-premises rather than off-premises, should also preclude the problems previously associated
with the location.
The protestant, the city of Sumter, also cited a concern that the proposed location would
burden law enforcement because of excessive service calls. While service calls by their very
nature deplete law enforcement resources, their was no evidence offered to establish that the
issuance of a beer and wine permit would place an additional strain on law enforcement. This is
especially true when one examines the nature of these service calls. Only one resulted from a
disturbance on the premises.
As to the residential neighborhood on Carolina Avenue, it must be noted that the
proposed location is surrounded by other businesses and situated in an area zoned commercial.
Further, Ms. Berry, a protestant and resident of Carolina Avenue testified that she has not been
disturbed because of the operation of Petitioner's business. Also, she testified that her house is at
least 1000 feet away from the business.
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 operations 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).
7. There was not a sufficient evidentiary showing that the present location is
unsuitable or that the issuance of an on-premises beer and wine permit would affect the residents'
safety or have an adverse impact on the community. The proposed location and the nature of the
business activity are suitable and proper given the commercial nature of the area in which the
proposed location is situated.
8. Without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a
permit or license is protested is not a sufficient reason by itself to deny the application. See 45
Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119
(1981). ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that an on-premises beer and wine permit is hereby granted to Tom K. Pate
upon the applicant complying with the aforementioned stipulations numbers (2) and (3). Further,
stipulation number (1) shall be placed as a restriction upon Petitioner's on-premises beer and wine
permit.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an
on-premises beer and wine permit for a location at 403 Broad Street, Sumter, South Carolina
upon payment of the required fee(s) and cost(s) by the Petitioner.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
November 16, 1995
Columbia, South Carolina |
