South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Linda Spann, d/b/a 341 Lounge vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Linda Spann, d/b/a 341 Lounge

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0110-CC

APPEARANCES:
Linda Spann, Pro Se

Department of Revenue, not represented.
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE


This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1995) and 12-60-1330 (Supp. 1996) on the application of Linda Spann d/b/a 341 Lounge for an on-premises beer and wine permit at Route 2, Box 256 A in Lynchburg, South Carolina. After notice to the parties, a hearing was conducted on April 28, 1997. Based upon the evidence presented, the application is granted.

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:



The applicant, Linda Spann, is 29 years old and is a resident of South Carolina and a legal resident of the United States.

  1. Spann has never had any criminal convictions and she has never had a permit or license relating to the sale of beer and wine or alcoholic liquors issued.
  2. No citations have been issued against the applicant relating to the sale of beer and wine or alcoholic liquors.
  3. The proposed location, the 341 Lounge, is located at Route 2, Box 256, Lynchburg, South Carolina. It is located in a small community in a predominately rural area of Lee County, South Carolina.
  4. The tentative hours of operation for the proposed location would be Monday through Saturday, 12 p.m. until 12 a.m. These hours have not been firmly established.
  5. The proposed location will be operated by the applicant and her brother Willie James Spann, who is 40 years old and has not been convicted of any crimes.
  6. The proposed location is a game room with one pool table in the rear of the location, a bar and the disc jockey stand. On occasion there will be some live entertainment. No food would be served.
  7. The proposed location was licensed from 1984 until 1989. There was a fatal shooting outside the proposed location at about 10 p.m. on March 14, 1986. A suspect was arrested and charged with the murder. The previous permittee continued to operate the location after the incident until 1989.
  8. No churches, schools or playgrounds are located in the vicinity of the proposed location.
  9. Residents in the area protest the application on the grounds of inadequate police protection and the potential of on-premises beer and wine consumption to jeopardize the safety of a number of single elderly persons in the community. They also complained that when previously licensed, the music was too loud. They are also fearful of another shooting at the location.
  10. Within 200 feet of the proposed location is a regularly maintained and unenclosed family cemetery with marked graves.
  11. Across the street from the proposed location is an Exxon station which sells beer and wine to go. The closest residence to the proposed location is 785 feet away.
  12. The entrance of a hotel/motel, the Relax Inn, is approximately 80 feet from the proposed location.
  13. Notice of the application was published in the Lee County Observer for the time required and posted at the location.
  14. There are parking places for approximately 50 cars.
  15. The exterior is illuminated by flood lights.
  16. The SLED investigative agent indicated that there was no appreciable presence of children in the area. The Sumter County Sheriff's office, which assists in any response, does not anticipate any problems if the permit is issued. The response time is approximately 25 minutes from Sumter.
  17. The location is near the Sumter and Lee County lines. The Lee County Sheriff was did not issue any protest for the location.


CONCLUSIONS OF LAW

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 (Supp. 1995) provides the statutory requirements for the issuance of on-premises beer and wine permits. It provides in part that the location must be suitable.
  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. "[P]roximity of a location to a church, school or residence is a proper ground, by itself, on which the [fact finder] . . . may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991)(construing § 61-9-320). The proposed location is not in close proximity to any of these structures.
  7. The aforementioned shooting occurred over ten years ago. The incident occurred outside of the location, and the person involved was apprehended. There is no evidence to suggest that the location is a public nuisance or a threat to the community.
  8. Law enforcement has not opposed the issuance of a beer and wine permit for the location. There is no evidence to support allegations of inadequate police protection for the community.
  9. There is adequate lighting and parking to accommodate patrons.
  10. Only generalities, opinions, and conclusions, without factual support, were offered to support Protestants' contention that issuance of the license and permit would detrimentally affect the well-being of 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).
  11. The issuance of the permit would not have an adverse impact upon the surrounding community.
  12. The applicant and the location are suitable for the issuance of an on-premise beer and wine permit.

ORDER

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

ORDERED, that the application of Linda Spann for an on-premises beer and wine permit for the 341 Lounge located on Route 2, Box 256 A in Lynchburg, South Carolina is GRANTED. The Department shall issue an on-premises beer and wine permit upon the payment of the appropriate fees.

AND SO IT IS ORDERED.







___________________________

ALISON RENEE LEE

Administrative Law Judge



June 2, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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