SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995), the Administrative Procedures Act, §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1995), and § 12-60-1320 (Supp. 1995) of the Revenue Procedures Act, upon the application of Charles R. Christian for an on-premises beer and wine permit at the Video Xpress Game Room, located at 2729 Two Notch Road, Columbia, Richland County, South Carolina. The Crescent Hill Baptist Church and the Edgewood Pentecostal Holiness Church protested the application. After notice to the parties and protestors, a contested case hearing was conducted on May 7, 1997, at the Administrative Law Judge Division in Columbia. Based upon the evidence presented, the application is granted. Any issues raised in the proceeding or hearing of this case not addressed in this Order are deemed denied. ALJD Rule 29.

FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. Petitioner, Charles R. Christian, filed an application for an on-premises beer and wine permit for the Video Xpress Game Room, 2729 Two Notch Road, Columbia, with the Department of Revenue ("DOR") on September 14, 1996.
2. Petitioner is a legal resident of the United States and South Carolina.
3. Petitioner has never been issued any type of permit for the sale of beer, wine, or alcoholic liquors and therefore has never had such a permit revoked.
4. Although Petitioner has never held a permit in his name, he has managed several locations which have been licensed to sell beer, wine or alcoholic liquors.
5. Petitioner is over the age of twenty-one and has no criminal record. He is a person of good moral character.
6. Notice of application appeared in The State on October 26 and 28 and November 4, 1996.
7. The Department of Revenue issued a Final Department Determination on January 8, 1997, denying the application because of public protests against the issuance of the permit.
8. The proposed location is a game room located next toVideo Xpress, a video store owned by the Petitioner. The proposed location and the video store share the same parking lot. A six foot wooden fence surrounds the parking lot.
9. The business will be open from 10 a.m. until 2 a.m., Monday through Friday, and 10 a.m. until 12 Midnight, Saturday. It will be closed on Sundays.
10. The proposed location will sell beer and pizza. The proposed location will have video poker machines, pool tables, and video games.



11. The proposed location is at the intersection of Two Notch Road and Carnegie Street, which is a commercial area within the City of Columbia.
12. A Columbia Police Department substation is located within one block from the proposed location.
13. A car dealership is located directly across Two Notch Road from the proposed location.
14. There are no schools or playgrounds near the proposed location.
15. The Crescent Hill Baptist Church is located 622 feet from the proposed location.
16. The Crescent Hill Baptist Church protested the application on the basis that the proposed location was unsuitable to sell beer and wine on-premises because (1) patrons who drank at the proposed location would complicate a dangerous traffic situation on Two Notch Road, which features 28,200 fast-moving cars daily and a dangerous hill near the proposed location; (2) the area near the proposed location is a high-crime area that is in the process of being revitalized through community efforts, to which the issuance of a new license would prove antithetical; (3) the proposed location is 75 feet from residences at Oak Hill Apartments where many recovering alcoholics reside and their recovery would be threatened by a licensed premises in the area; and, (4) the proposed location is near to the planned site for Palmetto Place, a center for abused and neglected children.
17. The Edgewood Pentecostal Holiness Church is approximately three blocks from the proposed location. The church opposed to the issuance of a license because (1) issuing the license would detrimentally impact an area already saturated with licensed premises; (2) issuing the license would endanger children that play in the residential area near the proposed location; and, (3) issuing the license would attract "undesirable" people to the area.
18. PJ's Pizza restaurant and Food Lion grocery store, located on Two Notch Road within three blocks of the proposed location, are permitted to sell beer and wine.
19. The Oak Hill Apartment Complex is contiguous to the rear of the proposed location and in front of Crescent Hill Baptist Church. Several residents of the Oak Hill Apartment Complex are recovering alcoholics. A wooden fence, at least six feet in height, is located between the proposed location and the apartment complex. Access to Oak Hill is more than 75 feet from the business and is over 600 feet from the proposed location.
20. There have been no problems requiring law enforcement at the location.
21. The Crescent Hill Baptist Church offered hearsay evidence that the Columbia Police Department had 144 reported incidents of criminal activity between November 1, 1996 and April 2, 1997 within one-quarter mile radius of the proposed location. No evidence was presented about police calls or responses.
22. Palmetto Place, a facility for abused and neglected children, is located or may be located several blocks from the proposed location. Palmetto Place originally protested the application, but did not appear at the hearing. The testimony was unclear about whether Palmetto Place is located in the vicinity of the proposed business.
23. The Office of Protective Services of the South Carolina Department of Social Services is located several blocks from the proposed business.

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

1. The Administrative Law Judge is vested with the powers, duties and responsibilities of hearing officers of the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1995).

2. S.C. Code Ann. § 61-9-320(6) (Supp. 1995) provides the statutory requirements for the issuance of on-premise beer and wine permits. It provides that no permit authorizing the sale of beer or wine may be issued unless "[t]he 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 indication of unsuitable location, the proximity to residences, schools, playgrounds, and churches. . . ."

3. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); and Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

5. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).

6. The fact that persons recovering from alcoholism live closely to the proposed location is not a basis to deny the permit. Alcoholism is a disease from which individuals must constantly struggle to resist the desire to consume alcoholic beverages. The existence of beer and wine at this proposed business would not contribute towards consumption any more than the existence of alcoholic beverages at restaurants, grocery stores, gas station convenience stores, party shops and similar businesses.

7. Because of the hearsay nature of the evidence relating to criminal activity, less weight is accorded this testimony.

8. Only generalities, opinions and conclusions, without factual support, were offered to support the protestors contention that the proposed business would be detrimental to the efforts of the community, endanger the children in the area and would attract "undesirable" people to the community. Such unsupported allegations are an insufficient basis for denial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301 (1972). 8. 9. The issuance of the permit would not have an adverse impact upon the surrounding community.

10. Petitioner meets all statutory requirements for the issuance of on-premises beer and wine permit.

11. The location is suitable for the issuance of an on-premises beer and wine permit, given the commercial nature of the area and given that permitted locations exist in the area already.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of Charles R. Christian for an on-premises beer and wine permit for the Video Xpress Game Room, located at 2729 Two Notch Road, Columbia, is GRANTED. The Department shall issue an on-premises beer and wine permit upon the payment of the appropriate fees.

AND IT IS SO ORDERED.

___________________________

ALISON RENEE LEE

Administrative Law Judge

July 2, 1997.

Columbia, South Carolina