SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1995) regarding an application for an on-premises beer and wine permit for an establishment known as J & J Sports Bar, located at Route 1, Sexton Gin Road, Anderson, South Carolina. Petitioner Jackie Witcher requested a contested case hearing upon the filing of a written protest by the Anderson County Sheriff's Department with the South Carolina Department of Revenue (hereinafter referred to as "DOR") to the issuance of the permit on the ground that the proposed location is unsuitable. A hearing was held at the Anderson County Courthouse on December 16, 1996. Upon motion granted, DOR was excused from appearing at the hearing. Based upon the relevant and probative evidence and the applicable law, the proposed location is found to be unsuitable, and the permit is denied.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

1. Jackie Witcher seeks an on-premises beer and wine permit for an establishment known as J & J Sports Bar, located at Route 1, Sexton Gin Road, between Leona Drive and Bascomb Circle, Anderson, South Carolina, having filed an application, AI #110690, with DOR.
2. The proposed location is located in a residential rural area of unincorporated Anderson County near the Town of Iva, approximately fourteen miles from the City of Anderson.
3. The proposed location was formerly owned and operated as Thompson's Lounge and the Blockhouse and was licensed to sell beer and wine at each as recently as 1993.
4. Numerous residences in the Hillcrest subdivision are located in close proximity to the proposed location.
5. The proposed location is located approximately one mile from Pleasant Road Baptist Church.
6. The neighborhood surrounding the proposed location has a history of criminal activity, including incidents and arrests involving the sale, distribution, and possession of crack cocaine and other illegal drugs; murder; shootings, and other gun related offenses; armed robbery; and public drunkenness.
7. The Anderson County Sheriff's Department conducted an undercover narcotics operation in the area surrounding the proposed location in 1995, resulting in approximately thirty arrests.
8. Because there are no other licensed locations in the area, the proposed location acted as a gathering and loitering place for drug pushers and buyers when it was previously licensed and operational.
9. While operated by a previous owner, the proposed location was the site of numerous disturbances, most of which were drug-related and required extensive police attention.
10. Since the proposed location has been closed, there have been no problems requiring law enforcement at the proposed location.
11. Since the proposed location has been closed, the level of drug activity in the area surrounding the proposed location has decreased.
12. The Anderson County Sheriff's Department fears that if the proposed location is granted a beer and wine permit and reopens, the proposed location will again become a gathering place and point of contact for drug pushers and buyers, despite Petitioner's good reputation and intentions.
13. The Anderson County Sheriff's Department covers and patrols an area of approximately 700 square miles with a normal patrol shift of twelve or thirteen officers.
14. The Iva area, where the proposed location is located, has one road patrol unit assigned to cover it and to respond to calls within the area.
15. Because of the limited resources of the Sheriff's Department, the issuance of a beer and wine permit for the proposed location would unduly burden local law enforcement efforts in the area.
16. The issuance of a beer and wine permit to Petitioner and the reopening of the proposed location as a bar would have a detrimental impact upon the surrounding area, despite Petitioner's intention to open and operate a reputable establishment.
17. Petitioner has made physical improvements to the proposed location to enhance the appearance of the establishment.
18. Petitioner is a lifelong resident of Anderson County and a 28-year employee of Owens Corning in Anderson.
19. Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
20. Petitioner has not had a permit/license revoked in the last two years.
21. Petitioner is of good moral character.
22. Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.
23. Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.
24. Testifying in support of the application were Petitioner Jackie Witcher and his brother-in-law, Johnny Ray Shelton, who plans to help Witcher on a part-time basis.
25. Testifying in opposition to the application were Anderson County Sheriff's Deputy Harvey Black, a narcotics agent and former patrol officer for the Iva area; and Rev. Stephen Gilliard, Pastor of Pleasant Road Baptist Church.
26. DOR did not appear at the hearing nor express opposition to the issuance of the permit, having been excused from participation upon motion granted.
27. Because of the past history of the proposed location, the drug-related activity in the surrounding area, the inadequacy of law enforcement to control crime in the area, and the likelihood that the proposed location would provide a gathering place for drug pushers and buyers if the establishment were reopened with a beer and wine permit, the proposed location is unsuitable for issuance of the permit sought.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. The South Carolina Administrative Law Judge Division has jurisdiction to hear this case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title I of the 1976 Code, as amended.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.
3. 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 license/permit to sell liquor, beer, and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984)
4. 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).
5. Constant problems which require police attention and create an adverse impact upon the neighboring residential neighborhood are grounds to deny a beer and wine permit. Palmer v. S.C. A.B.C. Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
6. The proposed location is unsuitable, and the permit must be denied because the location has been a constant source of problems for law enforcement officers and a place for persons to congregate and loiter for illegal purposes. Palmer v. S.C. A.B.C. Commission, supra.
7. The proposed location is unsuitable to be licensed because the sale of beer and wine for on-premises consumption at that location would create a strain upon police to adequately protect the surrounding community. Schudel v. S.C. A.B.C. Commission, 276 S.C. 138, 276 S.E.2d 308 (1981); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
8. The proposed location is unsuitable for issuance of the permit sought because of the past history of the proposed location, the drug-related activity in the surrounding area, the inadequacy of law enforcement to control crime in the area, and the likelihood that the proposed location would provide a gathering place for drug pushers and buyers if the establishment were reopened with a beer and wine permit. Accordingly, the application does not meet all the requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995) and must be denied.

ORDER

IT IS THEREFORE ORDERED that the on-premises beer and wine permit sought by Petitioner is denied.

_______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

January 30, 1997

Columbia, South Carolina