South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Ruby Burton, d/b/a Carivan vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Ruby Burton, d/b/a Carivan

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0386-CC

APPEARANCES:
For the Petitioner: Vannie Williams, Jr., Esquire

For the Respondent/ South Carolina Department of Revenue:

A. Dolores Hand
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division ("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 contested case hearing pursuant to the application of Ruby Burton, d/b/a Carivan ("Applicant or Petitioner"), for an on-premise beer and wine permit (AI 108572) at 129 Bland Avenue, Johnston, Edgefield County, South Carolina.

A hearing was held on November 26, 1996 at the Administrative Law Judge Division offices, 1205 Pendleton Street, Columbia, South Carolina. The issues considered were: (1) the suitability of the proposed location, and (2) the moral character of the applicant.

The application request is denied.



EVIDENCE

Exhibits

Certified portions of the Department of Revenue's ("Department or Respondent") file were sent to and received by the Division on November 14, 1996. They were made a part of the record with the exception of any references contained therein of communications or conversations with individuals or parties not present at the hearing.

Further, Petitioner placed into the record as Petitioner's Exhibit # 1 a sketch of the proposed location and its surrounding areas, with the proposed location circled in red ink. The Department placed into the record as its Exhibit # 2 a uniform traffic ticket issued to Dwayne Langford together with a Johnston Police Department report which contained three charges made against Larry Williams, B. D. Anthony and Dwayne Langford on September 6, 1996 at the proposed location. Also, the Department placed into the record as its Exhibit # 3 a Federal Bureau Of Investigation criminal report on John Henry Graham dated August 17, 1989.

Those exhibits, incorporated by reference in paragraph 6 of the Department's pre-hearing statement dated September 27, 1996 are also made a part of the record pursuant to ALJD Rule 26.

Testimony

The Chief of Police of the Town of Johnston testified in opposition to the permit grant as did the owner of the residence which is adjacent to the proposed location. Their concerns were loud noise, litter and the impact of the proposed location within the center of a residential neighborhood.

Also testifying at the hearing in support of the application request were the applicant, her niece, Ms. Regina Shepherd and her nephew, Mr. John Graham.

FINDINGS OF FACT

Having carefully reviewed the evidence and exhibits placed into the record and having carefully observed and judged the credibility of the witnesses presented at the hearing, by a preponderance of the evidence, I make the following Findings of Fact:

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.

3. The applicant is seeking an on-premise beer and wine permit for a grocery store/pool hall at 129 Bland Avenue (corner of Bland Street and Andrews Street), Town of Johnston, County of Edgefield, State of South Carolina.

4. The applicant is a widow of the age of 72 years. She has resided in South Carolina all her life. 5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Citizen 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. Applicant has never had a liquor license or beer and wine permit revoked. Previously she operated Burns Pool Hall located at 68 Lee Street, in the Town of Johnston, several blocks in distance from the proposed location. At that location she was issued the following warnings and violations:

(1) a warning on October 8, 1989 for "permitting the possession of liquor";
(2) a warning on August 9, 1991 for "permitting the unlawful possession of liquor";
(3) a violation on February 13, 1992 for "permitting the possession of beer by a person under the age of 21 years" for which she paid a fine of $400.00;
(4) a warning on February 13, 1992 for "allowing the unlawful possession of liquor";
(5) a violation on March 20, 1992 for "allowing the possession of beer by a person under the age of 21 years" and "disorderly conduct" which resulted in the suspension of her beer and wine permit for 60 days.

When applicant operated the Burns Pool Hall, disturbances were a frequent occurrence at its location.

8. Applicant is a good citizen within her community. I find that she is of good moral character.

9. The proposed location consists of a block building with parking areas surrounding it, located approximately one block from highway 121 (Lee Street). It has one bathroom inside. Highway 121 is the major highway passing through the Town of Johnston, leading toward the Town of Saluda in one direction and toward the City of Aiken in the other. As shown on the sketch (Petitioner's Exhibit # 1), there are numerous establishments /businesses located on highway 121, including convenience stores/gas stations where beer and wine may be purchased. Although the proposed location is surrounded by residences, it is located in a small rural town where the residential communities and business locations are closely intertwined.

10. Applicant proposes to operate the business as a sole proprietorship. She intends to utilize the services of a local "tax keeper" or bookkeeper who will reconcile her books once a month.

11. No dances or parties will be allowed or authorized at the proposed location. Applicant does intend to locate pool tables and a jukebox at the location; however, no video machines will be allowed.

12. Applicant's niece, Mrs. Regina Shephard, intends to offer assistance in operating the proposed location; however, such would be limited primarily to the weekends. Mrs. Shephard works at Mt. Vernon Mills plant between the hours of 8:00 a. m. and 5:30 p. m. daily and has two sons, ages 16 and 11, who live with her. Their father, John Graham, lives with her, also. Because of her responsibilities as a parent and her time involved at work, I find that Mrs. Shephard would be unable to assist applicant in the operation of the business during the week.

13. At the present time John Graham, a nephew of applicant, operates a pool hall at the location. However, no license or permit has been issued by the Department to him for the sale of beer, wine or liquor. It is the intention of Mr. Graham to assist applicant at the proposed location; specifically, he will work outside to ensure that patrons do not create disturbances and to observe customers as they enter the business. Further, he assisted applicant in finding this location and provides her transportation.

14. Mr. Graham has been arrested on various occasions on charges of simple assault, passing a fraudulent check, discharging firearms into a business establishment, assault with intent to kill, pointing and presenting a firearm, simple assault and battery and malicious injury to property. The last charge was made in 1989. He served time and was incarcerated on several of the offenses. The number of these criminal violations together with the problems which have occurred at the location since its operation as a pool hall by Mr. Graham are disturbing to this court. I do not find Mr. Graham to be a suitable person to assist applicant in the operation of the proposed location.

15. No churches, schools or playgrounds are located within close proximity of the proposed location.

16. Applicant's niece and nephew, Mrs. Shepherd and Mr. Graham, applied for and were issued a business license in their names to operate the proposed location. I find from such action that they intend to share in the operation of the proposed location with applicant.

17. Neither Gerald Williams, the owner of the residence located adjacent to the proposed location nor any other family member lives in the house presently; however, his mother plans to return to Johnston and make it her home.

18. Mr. Lelex Easler, the Chief of Police of Johnston, is familiar with the problems Mrs. Burton had at her previous location. He is concerned for the safety of the residents therein and is additionally concerned that Mr. John Graham, who has a previous record of criminal violations, may be a participant in this business. His concern is based upon the problems which have occurred at Mr. Graham's pool hall since its opening. Various calls have been made to the Johnston police department for assistance and arrests have been made. I find these concerns valid.





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).

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 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).

7. In considering suitability of location, it is relevant to consider whether the testimony in opposition to the granting of a permit consists only of opinions and conclusions or is 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, which could 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;
e) violations against the applicant at a previous location.


8. S.C. Code Ann. § 61-9-320 (Supp.1995) provides that in order to obtain and maintain a beer and wine permit, the holder must be of good moral character.

9. In South Carolina, there is no single criterion by which to determine whether or not one is possessed of good moral character. 1969 Op. S.C. Att'y. Gen. No. 2709 at 159. Generally, good moral character means that one should possess all elements essential to make up that character, such as honesty and veracity. Id.; See also Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (Fla. Dist. Ct. App. 1977); Broers v. Montana Dept. of Revenue, 773 P. 2d 320 (Mont. 1989).

10. It is a generally recognized principle that an alcoholic beverage permit may be refused to a person who has been convicted of a crime or crimes, particularly a violation of the liquor laws.

Wall v. S.C. ABC Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977).

11. Although I have found that applicant is of good moral character, it is obvious that she does not have the ability alone to manage such an operation as that proposed. She was not able to control the situation at her old location and now intends to utilize the assistance of her nephew who lacks the trustworthiness and integrity to perform the required functions. She was not even aware of his past criminal record which infers a lack of judgment on her part.

12. 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).

13. Based upon the concerns raised at the hearing, I find that the permit should be denied. Applicant did not adequately control the actions of patrons at her previous location and there is nothing in the record to persuade me that she will be able to do so at this location. I am concerned about the interest her nephew, Mr. Graham, may have in the location and doubt his ability to provide assistance in quelling disturbances or preventing them. Further, this location is within a residential neighborhood and the potential for adverse impact on its residents and children by patrons at the proposed location is too great to issue the permit.

14. Given the proximity of the proposed store/pool hall to local residences and the other concerns listed above, I conclude that the applicant has not met her burden of showing that she 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 Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application of Ruby Barton, d/b/a Miller's Carivan for an on-premise beer and wine permit at 129 Bland Avenue, Johnston, Edgefield County, South Carolina is denied.

AND IT IS SO ORDERED.



______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

December 12, 1996


Brown Bldg.

 

 

 

 

 

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