SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55, et seq. (Supp. 1994) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 1994) for a hearing pursuant to the application of Sam H. Furman, d/b/a Saluda River Restaurant, (applicant or Petitioner) for an on-premise beer and wine permit (AI 104576) at Route 1, Box 782, Highway 72 and 221, Laurens County, South Carolina (location).

A hearing was held on November 29, 1995, at the Spartanburg County Courthouse, Spartanburg, South Carolina. The issues considered were: 1) the suitability of the proposed location, and 2) the nature of the proposed business activity.

The application request was protested by a number of individuals with Joseph M. Pracht, Arthur Hipp and Bobby E. Fisher testifying. Mr. Pracht moved at the hearing to be made a party, which motion , after objection by Petitioner, was denied. The South Carolina Department of Revenue and Taxation (Respondent or Department) was not represented at the hearing, having been excused from attending pursuant to its filed motion. Further, the position of the Department, as outlined in its prehearing statement, was that based upon information furnished by the investigating State Law Enforcement Division (SLED) agent it would have issued the permit except for the protest of interested persons.

By agreement of the parties, I visited the location and general area on Friday, December 8, 1995.

Petitioner's application request is granted with restrictions.

EXHIBITS

Without objection, the certified portions of the Department's file sent to and received by the Administrative Law Judge Division were made a part of the record in this case. Further, several other exhibits were placed into the record.

FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties, including the protestants.

3. The applicant is seeking an on-premise beer and wine permit for a restaurant located at the intersections of Highways 72 and 221, Laurens County, South Carolina.

4. The applicant is fifty-six (56) years of age.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Laurens County Advertiser, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

6. 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.

7. The applicant has been a legal resident of South Carolina for over thirty days and has maintained his principal place of abode in South Carolina for over thirty days.

8. The applicant is of good moral character. He has never had a liquor license or beer and wine permit revoked or suspended. He presently owns retail liquor stores in Anderson, Greenwood and Abbeville, South Carolina, which are licensed by the Department.

9. Applicant purchased the location with all the restaurant equipment and inventory therein from the previous owners, Mr. and Mrs. Cecil E. Burrell, Sr., on August 1, 1995, for the sum of $174,500.00. He has operated the location as a restaurant since its purchase.

10. The previous owners, while operating a restaurant at the location which was named the Saluda River Truckstop, held a beer and wine permit for on-premise consumption. It was issued by the ABC Commission in 1963 and held by Mr. Burrell until the sale to applicant

11. The renewals of the on-premise beer and wine permit when held by MR. Burrell were never objected to nor protested.

12. There were never any ABC violations of the permit(s) issued to Mr. Burrell.

13. The applicant presently holds a temporary permit for the sale of beer and wine for on-premise consumption at the location. Applicant continues to serve a full menu, specializing in catfish.

14. The location is open twenty-four (24) hours daily, Monday through Saturday and from 8:00 a.m. to midnight on Sunday.

15. There have been no recorded incidents of disorderly conduct or problems at the location or in the parking lot resulting from the consumption of beer or wine, either under the previous ownership or under applicant's ownership.

16. The location is in a rural area, fronted by a four lane highway. The nearest residents are two in number who live on the premises, namely the previous owner, Cecil E. Burrell, Jr., and Mrs. Anna Knox (sister to Mr. Burrell). Neither object to the permit issuance.

17. Across the interstate from the location is Lee's Barbecue and a retail liquor store owned by Arthur Hipp, a protestant. The liquor store has been in operation approximately eight (8) years and the barbecue store for approximately twenty-seven (27) years.

18. The location is approximately 1/2 to 3/4 mile in distance from Lake Greenwood which is the boundary line between Greenwood and Laurens counties. It is approximately eighteen (18) miles from the nearest Laurens county substation.

19. There are some video poker machines operational at the location.

20. Since his purchase of the location, applicant has refurbished it with paint, installed a new septic tank and spread gravel in the parking area.

21. Between the location and Lake Greenwood are five or more businesses where video poker machines are located. These locations are a direct result of Greenwood County citizens' vote to disallow licensing of video poker machines in their county.

22. A burglary occurred at the location and a robbery occurred at a video poker location, each within a short time frame prior to the hearing.

23. The restaurant is managed by the applicant's son, J.R. Furman, who is at the restaurant daily.

24. The concerns of the protestants consisted of increased traffic, increased crime, loitering, increased danger to residents in the area and a depression of their residential property values. Each protestant lives on or near the lake but not within close proximity of the proposed location.

25. The homes located in Edgewater subdivision are accessed by a paved two-lane road which meanders approximately 1/2 to 1 mile to their residences. The entrance to the subdivision is across the highway and toward the lake from the proposed location.

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. 1994) 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. § 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.

4. S.C. Code Ann. § 61-3-440 (Supp. 1994) 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. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). 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). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

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). 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers v. South Carolina ABC Commission, 305 S.C. 243, 407 S.E. 2d 653 (1991).

6. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the granting of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 198 S.E. 2d 801 (1973). In this instance there was no specific or credible testimony that the granting of the requested permit to the applicant would have a detrimental impact on the community, or place any undue burdens on local law enforcement. Factors which weigh in favor of granting the permit are:

1. Applicant has no prior history of any criminal violations of any kind.

2. Testimony presented at the hearing, particularly that of Laurens County Deputy Sheriff Alvin Powers, who is the officer having responsibility for all administrative records for the Sheriff's Office, was that there were no reported incidents of fights or arrests for drunk and disorderly conduct while owned by Mr. Burrell or the applicant. Further, he had no personal knowledge of any problems at the location.

3. No evidence was presented of any history of ABC violations at the location.

4. No credible evidence was provided to the Court of any increased traffic as a result of the sale of on-premise consumption of beer and wine presently at the location

5. Applicant owns and operates three retail liquor stores with no history of any ABC violations.

6. Applicant and his son intend to be hands on proprietors, participating in the restaurants operation and management on a daily basis.

7. There was no credible testimony that law enforcement could not properly police the location.

8. The Department did not object to the permit licensure.

9. The location had previously been permitted for approximately twenty-two (22) years.

7. S.C. Code Ann. § 61-9-340 (Supp. 1994) 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 Department must issue the permit after payment of the prescribed fee.

8. 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.

9. Permits and licenses issued by the State for 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).

10. Given the history of this location having a permit for many years with no evidence of any violations and considering the testimony of all the witnesses, I conclude that the applicant has met his burden of proof in showing that he meets all of the statutory requirements for holding an on-premise beer and wine permit, that the proposed location is a suitable and proper one, and accordingly, the beer and wine permit should be granted.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Sam H. Furman, d/b/a Saluda River Restaurant for an on-premise beer and wine permit for the premises located at Route 1, Box 782, Highway 72 and 221, Laurens County, South Carolina, is granted with the following restrictions, upon the applicant signing a written agreement to be filed with the South Carolina Department of Revenue and Taxation to adhere to the stipulations set forth below:

1. There will be no outside advertising of beer and wine at the location.

2. Applicant and/or his employees and agents will prevent loitering and the consumption of beer and/or wine by anyone in the parking lot and exterior areas of the proposed location.

3. The sale and consumption of beer and wine at the location is limited to the restaurant area.

4. Applicant will ensure that no loud noise emanates from the location. There will be no live music or bands nor exterior speakers.

IT IS FURTHER ORDERED that a violation of any one of the above conditions 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 shall issue the permit upon payment of the required fees and costs by the applicants.

AND IT IS SO ORDERED.

______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

December 15, 1995