ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§ 61-1-55, et seq. (Supp. 1995) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp.
1995) for a hearing pursuant to the application of Raymond P. Parris, d/b/a Parris', (applicant) for an
on-premise beer and wine permit (AI 105601) at Route 6, Box 1438, Old Airport Road, Laurens
County, South Carolina (location).
A hearing was held on February 12, 1996, at the Administrative Law Judge Division Offices,
Columbia, South Carolina. The protestant appeared at the hearing. The South Carolina Department
of Revenue and Taxation ("Department") was not represented at the hearing, having been excused
from attending pursuant to its filed motion. However, the position of the Department, as outlined
in correspondence with the applicant, was that based upon the protests of interested persons, it was
denying the application request.
The issues considered were: 1) the suitability of the proposed location, and 2) the nature of
the proposed business activity.
Petitioner's application request is denied.
EVIDENCE
Exhibits
Without objection, the certified portions of the Department's file (AI 105601) sent to and
received by the Administrative Law Judge Division were made a part of the record in this case.
Further, applicant placed into the record a drawing of the location.
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 protestant.
3. The applicant is seeking an on-premise beer and wine permit for a tavern to be located
at Route 6, Box 1438, Old Airport Road, Laurens County, South Carolina.
4. The applicant is 48 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.
9. Applicant owns the location property and presently has 4 pool tables and 1 juke box
at the location. He sells soft drinks and snacks at the location now.
10. If this permit is granted, applicant intends to partition the building at the location
(presently 80 feet long by approximately 27 1/2 feet wide) into two parts, one of which will be a pool
room and bar, the other a produce store.
11. Applicant has never operated a bar or worked at a business where beer or wine was
sold.
12. Applicant has sold produce in the past and has experience in that business. He is
presently employed at B. F. Shaw Company which is located across the road from the location.
13. Applicant's son, Kevin Thomas Paris, who is 27 years of age, intends to operate the
pool hall and bar with applicant's primary focus on the sales of produce.
14. Applicant previously had video poker games at the location but has none presently.
15. The location is fenced on all sides except the front.
16. The proposed hours of operation at the pool hall/bar are 7:00 p.m. to 2:00 a.m.,
Monday through Friday and 7:00 p.m. to 12:00 a.m. on Saturday, based upon the testimony of
Applicant's son.
17. The location is on the outskirts of the City of Laurens and not within its municipal
limits.
18. Approximately 30-50 feet from the location is Wilson's County Market, owned by
Rose Wilson, who holds an on-premise beer and wine permit for that location. The building is
separated into a convenience store, and restaurant area and a portion where a group of people meet
and hold religious services on Sundays and Wednesday evenings.
19. Wilson's Country Market closes each evening no later that 10:30 p.m. Any drinking
of beer or wine at the store is minimal. No fights or disturbances have resulted from alcoholic intake
at Wilson's in the last several years sufficient to create any danger for residents in the neighborhood.
20. The sole protestant, Maxine A. Shockley, aged 54, lives with her 32 year old daughter
and two grandchildren, ages 8 and 4, in her home located approximately 100 feet from the rear fence
of the location.
21. Protestant's mother, Mrs. Helen P. Abercrombie, who is 72 years of age, lives in her
home which is located approximately 50 feet from applicant's fence.
22. The protestant and her mother, who are the two closest residents to the location, fear
for their health and safety from individuals who might become intoxicated at applicant's location.
They are also concerned about loud noise, fights and disturbances at the location.
23. No school or park is in close proximity to the location.
24. The permit application is denied due to the proximity of the location to protestant's
home and that of Mrs. Abercrombie.
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. 1995) 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. 1995) 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. 1995) 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 State 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. 1995) 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 this tribunal 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 credible testimony that the granting of the requested permit to the applicant would
have a detrimental impact in the community, and could even place undue burdens on local law
enforcement. Factors which weigh in favor of denying the permit are:
a) the closeness of the location to protestant's residence;
b) the closeness of the location to the residence of protestant's mother, Mrs.
Helen P. Abercrombie, who is widowed and 72 years of age;
c) the presence of children in the neighborhood;
d) the lack of concern on the part of applicant in protecting the safety of children
by agreeing to allow them to frequent the pool hall when and where adults are
consuming beer and/or wine;
e) the proposed hours of operation at the location;
f) the potential safety concerns of nearby residents; and
g) the potential nuisance from loud noise emanating from the pool hall, together
with potential rowdiness and fights therein.
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. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
8. S.C. Code Ann. §61-9-340 (Supp. 1995) 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.
9. Given the proximity of the proposed pool hall/tavern to the protestant's residence and
that of her mother, it is concluded that applicant has not met his burden of showing that he meets all
the statutory requirements and criteria for holding an on-premises beer and wine permit. Accordingly,
I conclude that the proposed location is not a suitable and proper one for the issuance of the permit.
ORDER
Based upon the above Discussion, Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Raymond P. Parris, d/b/a Parris' for an on-premises beer
and wine permit for the premises located at Rt. 6, Box 1438, Old Airport Road, Laurens County,
South Carolina is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
February 21, 1996 |
