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 109345) at 1001 Carver Street, Florence County, South
Carolina (location).
A hearing was held on September 24, 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 109345) sent to and
received by the Administrative Law Judge Division were made a part of the record in this case. The
protestant placed into the record as Exhibit #1 five photographs 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 1001 Carver Street, Florence County, South Carolina.
4. The applicant is 52 years of age.
5. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Florence Morning News, 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 has never had a liquor license or beer and wine permit revoked or
suspended.
9. Applicant proposes to operate the tavern/club in partnership with his nephew, Gary
Wayne Martin, and his aunt Ms. Gladys Miller. They intend to hire employees to assist in the
operation of the club and to prepare short orders such as hamburgers and hot dogs. Presently the
location is open where sodas and cigarettes are offered for sale.
10. The property location is owned by heirs of the late Charlie Miller who operated it as
a grocery store and held a beer and wine permit. However, it has been closed for a number of years.
11. Applicant is employed as a swimming pool installer, Gary Martin is employed in
shipping and receiving at the Dry Wood Molding Company and Ms. Gladys Miller is a housekeeper
at the local Red Roof Inn. None of them have a criminal record and each are of good moral
character.
12. Applicant and his partners intend to operate the club at least six days a week from
approximately the noon hour to 11:30 P. M. They intend to have a jukebox in the location and a
small radio. No loudspeakers are to be installed on the exterior of the building. No loud music or
live music is planned at the location.
13. Applicant has never worked in a bar nor worked in a location where beer and wine
was sold . He is not familiar with the laws governing the opening and closing of locations which sell
beer and wine in this State. However, Gary Martin has some experience since he was an assistant
manager of a noncommissioned officers club while he was serving as a member of the U. S. Army.
Ms. Gladys Miller has no experience in operating or running such a club.
14. Gary Martin will be the partner primarily responsible for the operation and
management of the club.
15. The location fronts on Carver Street in Florence County. The boundary line
separating the City limits of Florence and the county is the center of Carver Street in front of the
location. This location separating the city and county has created problems for law enforcement in
the past, both for the city and county when suspects would evade jurisdiction by crossing the street.
16. The location is situated in the middle of a residential subdivision where the houses are
close together. Also, four or five churches are located within a two block area of the club. Further,
a playground is located a short block away.
17. The only vehicular parking available for customer's usage who frequent the location
is across the street. None is available at the location property.
18. Management intends to attract customers from the local area and from outside the
local community.
19. None of the nearby residents have protested the application. However, the Florence
County Sheriff's office protests the application on behalf of several residents and is concerned with
the health, safety and welfare of small children who live in the community.
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 residences in the community;
b) the presence of small children in the neighborhood;
c) the potential safety concerns of nearby residents;
d) the potential nuisance from loud noise emanating from the club, together with
potential rowdiness and fights thereat.
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. Given the proximity of the proposed club/tavern to local residences and the other
concerns listed above, I conclude that the 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 Johnny Martin, d/b/a Miller's Outpost for an on-premises
beer and wine permit for the premises located at 1001 Carver Street, Florence County, South
Carolina is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
October 1, 1996 |
