SC Administrative Law Court Decisions

The Petitioner, Judy A. Haigler (Haigler) of Orangeburg, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit for 1529 Gregg Street, Orangeburg, South Carolina. Captain William A. Martin of the Orangeburg County Sheriff's Department filed a protest seeking to prevent DOR from granting the license. However, at the hearing held on April 15, 1996, it was determined the same location had been previously denied a permit by Judge Stephen P. Bates on August 31, 1995. See Tina L. Jackson, d/b/a Jackson Lounge vs. S.C. Dep't of Revenue and Taxation, 95-ALJ-17-0396-CC. Judge Bates found the location improper based upon "the tendency of the location to attract drug users and dealers" which would foster "criminal activity and law enforcement problems in the area." By order dated April 15, 1996, the matter was remanded to DOR for an investigation of whether S.C. Code Regs. 7-96 (Supp. 1995) was satisfied. That regulation addresses applications for permits where the location under review has been previously denied. With jurisdiction for this hearing in the ALJD under S. C. Code Ann. §§61-1-55 (Supp. 1995), 1-23-600(B) (Supp. 1995) and 1-23-310 (Supp. 1995), on May 16, 1996, a hearing on the issue was held with Haigler and DOR present. DOR asserts the application cannot be processed since the prior denial prevents a reapplication for the same location and Haigler has failed to show material changes in the location since the prior denial. The sole matter for consideration is whether material changes have taken place since the prior denial. I find that no material changes have occurred and that DOR is prohibited from processing Haigler's application for a beer and wine permit.

Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29B. Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29C.

Have material changes with respect to 1529 Gregg Street, Orangeburg, South Carolina, occurred since the prior determination of unsuitability?

III. Analysis

1. Positions of Parties:

DOR asserts the application cannot be processed in that the prior denial prevents a reapplication for the same location until Haigler demonstrates material changes have occurred since the prior denial. DOR asserts there have been no material changes, while Haigler asserts material changes have taken place.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about October 20, 1995, Haigler filed an application with the Department of Revenue for an on-premises beer and wine permit.

2. The application is identified by DOR as AI 105678.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is 1529 Gregg Street, Orangeburg, South Carolina.

4. The nature of the business is that of a night club doing business as Club 21.

5. A protest to the application was filed by Captain William A. Martin on behalf of the Orangeburg County Sheriff's Department.

6. The hearing on this matter was held May 16, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Changes in the Location

7. On August 31, 1995, Judge Stephen P. Bates of the Administrative Law Judge Division found that the location at 1529 Gregg Street, Orangeburg, S.C. was not a proper location for a beer and wine permit. See Tina L. Jackson, d/b/a Jackson Lounge vs. S.C. Dep't of Revenue and Taxation, 95-ALJ-17-0396-CC.

8. Judge Bates found the location improper based upon "the tendency of the location to attract drug users and dealers."

9. Judge Bates further found a permit at this location would foster "criminal activity and law enforcement problems in the area."

10. While some abandoned houses have been removed and some cleaning has occurred since August of 1995, there have been no material changes in the location since the prior denial.

11. Since August of 1995, drug users and dealers have continued to frequent the area.

12. The Sheriff's Office visits the entire area of Gregg Street, including the club area where the proposed location is located, on a daily basis due to the presence of illegal drugs in the area.

13. Criminal activity and the need for continued police intervention has not decreased and in fact has increased along the entire street of Gregg Street since August of 1995.

14. Criminal activity and police intervention have included disturbances such as loitering, robbery, fighting, and illegal drug use and distribution.

15. In recent months, law enforcement authorities made an arrest for a stolen vehicle at the club next door to the proposed location. The arresting officer was injured in the process of making the arrest.

16. The presence of beer and wine encourages the congregation of teens and young adults in the Gregg Street area and in the area of the proposed location.

17. At the 1995 hearing, a map covering the Gregg Street area was submitted.

18. In the current 1996 hearing a map covering the Gregg Street area was also submitted.

19. There is no material physical change in the location since the maps depict essentially the same configurations of property and businesses.

3. Discussion

Since Judge Bates determined in August of 1995 that the location was improper, the issue is whether material changes with respect to the location have taken place since the 1995 denial. S.C. Code Regs. 7-96 (Supp. 1995). No material changes have occurred.

Under S. C. Code Ann. §61-9-320 (Supp. 1995), no beer and wine permit may be granted unless the location of the proposed place of business is a proper location. In determining a proper location, the fact-finder may consider any factors that demonstrate the adverse effect the location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). A significant factor is the impact upon crime and the need for police intervention. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

In 1995, Judge Bates found the location unsuitable due to "the tendency of the location to attract drug users and dealers." Further, Judge Bates found a permit at this location would foster "criminal activity and law enforcement problems in the area." Here, the reason for the denial has not lessened since August of 1995 but rather has in fact worsened. Since August of 1995, drug users and dealers have continued to frequent the area. The situation is such that the Sheriff's Office visits the entire area of Gregg Street, including the club area where the proposed location is located, on a daily basis due to the presence of illegal drugs in the area. The scope of criminal activity and police intervention has included disturbances such as loitering, robbery, fighting, and illegal drug use and distribution. In fact, in recent months, law enforcement authorities have made an arrest for a stolen vehicle at the club next door to the proposed location with such arrest accompanied by injury to the arresting officer. Additionally, there has been no material change to the physical layout of the area except for the removal of several unoccupied houses and some cleaning. Considering all of the relevant factors leading to the prior denial and considering the evidence of a lack of changes in the area, there is no material change since August of 1995 warranting DOR's processing of the application.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. No beer and wine permit may be granted unless the location of the proposed place of business is a proper location. S. C. Code Ann. §61-9-320 (Supp. 1995).

2. DOR shall not process a beer and wine permit where an application has been denied on the basis of an unsuitable location unless some material change with respect to the location has occurred. 23 S.C. Code Ann. Regs. 7-96 (Supp. 1995).

3. A material change with respect to a location is a change of a meaningful nature to a factor that was relevant to the original decision finding the location unsuitable for a beer and wine permit. S.C. Code Ann. §61-9-320(6) (Supp. 1995) and 23 S.C. Code Ann. Regs. 7-96 (Supp. 1995).

4. A significant factor in determining whether a location is proper is the impact the proposed location will have upon crime and the need for police intervention. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

5. The fact-finder may consider factors that demonstrate the adverse effect the location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

6. In 1995, Judge Bates found the location unsuitable due to "the tendency of the location to attract drug users and dealers" and since the location would foster "criminal activity and law enforcement problems in the area."

7. No material changes have occurred since August 1995 since the proposed location will continue the tendency of the area to attract drug users and dealers and continue to create law enforcement problems in the area.

DOR is ordered to refuse to process the application filed by Haigler for an off-premises beer and wine permit at 1529 Gregg Street, Orangeburg, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 20th day of May, 1996.