ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1996) and S.C. Code Ann. § 61-1-55 (Supp. 1995) upon the filing of an application by
Ronald A. Firetag, Firetag Concessions, d/b/a Watermark Cafe ("Petitioner"), for issuance of an
on-premises beer and wine permit for 930 Laurel Street, Columbia, South Carolina. The
Petitioner filed an application for an on-premises beer and wine permit, AI #110952, with the
South Carolina Department of Revenue ("DOR") on September 18, 1996. A written protest was
received by DOR in opposition to the permit application, and the case was transmitted to the
Administrative Law Judge Division ("ALJD"). A contested case hearing was conducted on
April 29, 1997, at the ALJD in Columbia. Upon review of the relevant and probative evidence
and applicable law, the application for an on-premises beer and wine permit is granted.
DISCUSSION
Protestant Theodore Reading opposes the issuance of a beer and wine permit for the
proposed location, contending that the location is unsuitable because of the presence of playing
children. Reading also asserts that public opinion is against beer and wine sales in Finlay Park
and that it is bad public policy on the part of the City of Columbia ("City") to allow beer and
wine sales and consumption in public parks. Also testifying at the hearing in protest of the
proposed location were Margaret A. Gregory, the chairperson of "Fighting Back," a local alcohol
awareness task force, and local residents Mary Alexander and May Hennecy. Each expressed
objection to allowing beer sales in a family environment. None of the protestants, however,
offered any credible, relevant evidence to prove the issuance of the permit sought will have an
adverse impact on the community. No evidence was offered of prior problems at the park during
events in which beer was sold. There was no proof offered that local law enforcement is
inadequate to patrol the area or that Petitioner is unfit as a licensee.
In contrast, Petitioner offered evidence, in part through the testimony of City of Columbia
Assistant City Manager Charles Williams, that the location is suitable. Beer has been sold in the
park on numerous occasions with no law enforcement or safety problems. The City has full-time
law enforcement personnel on duty in the park and bolsters its force during peak use times. The
proposed location will not operate as a nightclub or bar. It is simply a cafe with a scenic view.
Being in downtown Columbia, there are a number of other licensed locations within walking
distance of the park. The introduction of another source of beer sales in the area will not
adversely alter the complexion of the area.
While some local residents and park users may be offended by the sale and consumption
of beer and wine in the park, the purpose of a contested case hearing is not to measure public
sentiment or to judge public policy. The decision of whether to issue a beer and wine permit
must be based upon the evidence presented which directly relates to the suitability of the
location. Speculation, opinion, and personal preference do not have a probative effect. Without
persuasive evidence to establish that a proposed location would have an impact upon the
surrounding community, the permit must be granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
- Petitioner seeks an on-premises beer and wine permit, for a location known as the
Watermark Cafe at 930 Laurel Street, Columbia, South Carolina, having filed an
application with DOR on September 18, 1996.
- Upon motion granted, DOR was excused from appearance at and participation in the
contested case hearing on the ground that it would have granted the permit renewal but
for the unanswered question of the suitability of the proposed location.
- Notice of the time, date, and location of the hearing was given to all parties and
protestants.
- The DOR file was incorporated into the record at the hearing without objection.
- The proposed location is located within Finlay Park, a municipal park owned and
operated by the City of Columbia.
- Finlay Park occupies approximately four city blocks in downtown Columbia. It includes
parking areas, a grassy lawn with walkways, an amphitheater, an outdoor stage, restroom
facilities, a small pond, and a terraced waterfall, and a permanent cafe.
- The proposed location is a cafe which is situated at the top of the waterfall overlooking
the rest of the park.
- A playground is located in close proximity to the proposed location.
- The Watermark Cafe is operated and managed by Petitioner under a lease agreement with
the City of Columbia.
- Finlay Park is a popular place for leisure activities for children and adults.
- Prior to Petitioner's management, the City of Columbia operated the proposed location
for approximately 4-5 years.
- The City previously applied for issuance of a beer and wine permit for the proposed
location but subsequently withdrew that application prior to a contested case hearing.
- Petitioner's application was encouraged and is supported by the City of Columbia.
- The City authorizes the sale of beer by non-profit organizations at various events in at
least three city parks.
- The City has routinely authorized the sale of beer by vendors working for non-profit
organizations in Finlay Park for various events during the past several years.
- Past beer sales at Finlay Park have occurred with no difficulties or safety problems.
- Finlay Park is under the jurisdiction of the Columbia Police Department.
- The City has park rangers assigned and on duty patrolling the grounds of Finlay Park at
all times. Additional police officers are assigned to the park during special events.
- The area immediately surrounding the proposed location is urban in nature, and includes
commercial and residential properties.
- Since opening the proposed location, there have been no criminal or administrative
citations or warnings issued to Petitioner.
- Petitioner has never been cited for any violations of the alcoholic beverage control laws
nor ever had a permit to sell beer and wine revoked.
- 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.
- Petitioner is of good moral character.
- Petitioner is a fit person to sell beer and wine.
- Protestants' contention that issuance of the permit would detrimentally affect the well-being of the community was based upon generalities, opinions, and conclusions, without
factual support.
- Based upon the past history of beer sales at the proposed location, the ample police and
park ranger presence in the park, the existence of other licensed locations in close
proximity, the nature of Petitioner's business activity, and the cooperation and support
from the City of Columbia, and the lack of relevant, probative evidence of unsuitability,
the proposed location is suitable to be licensed to sell beer and wine for on-premises
consumption.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
- The South Carolina Administrative Law Judge Division has jurisdiction over this subject
matter pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1995) and 1-23-310, et seq. (1986
& Supp. 1996).
- S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met by an applicant
for issuance of a beer and wine permit.
- "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed."
Palmer v. South Carolina Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. 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. Byers v. South Carolina Alcoholic
Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
- 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).
- While proximity of a church, residence, playground, or school to a proposed location
may, in and of itself, be adequate grounds for denial of a beer and wine permit, there is no
minimum distance requirement. William Byers v. S.C. ABC Commission, 305 S.C. 243,
407 S.E.2d 653 (1991). S.C. Code Ann. § 61-3-440 (Supp. 1995) dictates that an
establishment located within a municipality licensed to sell liquor must be a minimum of
three hundred (300') feet from any church, school, or playground, but there is not a
similar statute applicable to establishments which sell beer and wine.
- Prior suitability is a factor to be considered. There is no evidence that Finlay Park, site of
the proposed location, is any less suitable now than it was when previous beer sales
occurred at the park during various events. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d
801 (1973).
- The existence of other businesses in close proximity which are licensed to sell beer and
wine is evidence of suitability of the proposed location. Taylor v. Lewis, supra.
- The urban and commercial setting of the proposed location is evidence supporting its
suitability. Ronald Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
- Inadequate law enforcement to cover the likely crowds which may congregate at a
proposed location is a ground for denial of a beer and wine permit application. Moore v.
S.C. ABC Commission, 308 S.C. 167, 417 S.E.2d 555 (1992). Fowler v. Lewis, 260 S.C.
54, 194 S.E.2d 191 (1973).
- Prior problems at a proposed location involving criminal activity and intoxication is a
reasonable ground for denial of a beer and wine permit application. Schudel v. S.C.
ABC Commission, 276 S.C. 138, 276 S.E.2d 308 (1981).
- Without sufficient supporting evidence, opinions, hearsay, generalities, and conclusions
are not proof of a location's unsuitability. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301
(1972).
- Based upon the past history of beer sales at the proposed location, the ample police and
park ranger presence in the park, the existence of other licensed locations in close
proximity, the nature of Petitioner's business activity, and the cooperation and support
from the City of Columbia, and the lack of relevant, probative evidence of unsuitability,
the proposed location is suitable to be licensed to sell beer and wine for on-premises
consumption.
- Petitioner meets the statutory requirements to hold a permit to sell beer and wine. S.C.
Code Ann. § 61-9-320 (Supp. 1995).
- Any issues raised in the proceedings not addressed in this order are deemed denied
pursuant to ALJD Rule 29(B).
ORDER
IT IS THEREFORE ORDERED that the beer and wine permit sought by Petitioner is
granted.
______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 14, 1997
Columbia, South Carolina |
