SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) upon a request for a contested case hearing. Petitioner seeks issuance of an

on-premises beer and wine permit and a business sale and consumption minibottle license for a proposed business located at 108 S. Highway 52, Moncks Corner, South Carolina, in Berkeley County. A written protest to the permit and license application was filed by Protestant with the South Carolina Department of Revenue("DOR"), and upon request for a hearing filed by Petitioner, this matter was transmitted by DOR to the Administrative Law Judge Division. A hearing was held on May 22, 1997. Upon review of the relevant and probative evidence and applicable law, Petitioner's application for an on-premises beer and wine permit and business sale and consumption minibottle license is conditionally granted.

By a preponderance of the evidence, I find:

1. Petitioner Rey P. Thompson, of Buck-N-Phase, Inc., d/b/a Buck-N-Phase, seeks issuance of an on-premises beer and wine permit and a business sale and consumption minibottle license for a proposed business located at 108 S. Highway 52, Moncks Corner, South Carolina, in Berkeley County, having filed an application with DOR for each, AI #112301 and AI #112302 respectively, on December 17, 1996.
2. Notice of the time, date, place, and subject matter of the hearing was given to all parties.
3. Prior to the hearing, DOR moved to be excused from appearance at and participation in the contested case hearing on the ground that it would have granted the permit and license but for the unanswered question of the suitability of the proposed location. That motion was denied, and counsel for DOR appeared at and participated in the contested case hearing. At the conclusion of the proceedings, DOR stated that it believed the proposed location to be suitable and supported issuance of the permit and license sought.
4. The proposed location is situated within the corporate limits of the Town of Moncks Corner.
5. The area surrounding the proposed location is predominately commercial in nature, with some residences in proximity.
6. The proposed location was formerly used as a warehouse and as a Pepsi Cola bottling plant.
7. Petitioner is in the process of converting and renovating the proposed location into a community entertainment center, to include facilities for playing live and recorded music, dancing, the preparation and service of food, bar service, billiards, darts, and other activities.
8. Protestant Larry K. Grooms opposes the issuance of the permit and license sought by Petitioner because of noise, safety, parking, and moral concerns.
9. Protestant Larry K. Grooms owns and operates Moncks Corner Texaco adjacent to the proposed location, on the northern side of the proposed location.
10. Grooms' Texaco station includes gas pumps, a convenience store, and an oil and lube center.
11. Grooms' Texaco does not sell beer or wine.
12. Jones Lumber Co. is located immediately adjacent to the proposed location, on the southern side of the proposed location.

1. Ticker's Restaurant and Lounge, associated with the Swamp Fox Motel, is located approximately 515 feet south of the proposed location.
2. Ticker's Restaurant and Lounge holds an on-premises beer and wine permit and business sale and consumption minibottle license.
3. Immediately behind the proposed location and Grooms' Texaco is a large parking lot and a strip shopping center which includes Wal-Mart, Revco, and Bi-Lo stores.
4. The Bi-Lo holds an off-premises beer and wine permit.
5. Within approximately 800 feet of the proposed location, across Highway 52 on Altman Street, is a Food Lion store which holds an on-premises beer and wine permit.
6. Located with 1,400 feet of the proposed location is a Rite-Aide Pharmacy, BP service station, and Corner Gas & Tackle shop, which hold beer and wine permits.
7. A mobile home park containing approximately eighteen residential dwellings is located approximately 770 feet south of the proposed location.
8. There is no church within 300 feet of the proposed location.
9. There is no school within 300 feet of the proposed location.
10. Located diagonally across Highway 52 from the proposed location, approximately 250 feet away, is a Burger King fast food restaurant which has children's recreational equipment on its business premises for use by patrons and their children.
11. The recreational equipment located on the Burger King business premises is not provided by the public or members of the community.
12. There is no public playground within 300 feet of the proposed location.
13. Once open and operating, Petitioner plans to prepare and serve a variety of food items to patrons, including appetizers, salads, deli sandwiches, and grilled items.
14. Once open and operating, the proposed location will have seating capacity in its restaurant area for at least forty patrons.
15. Once open and operating, the proposed location will have walk-in food coolers, a large convection oven, and other full-service kitchen equipment capable of preparing food on a large scale.

1. Prior to opening, Petitioner intends to apply for and obtain a food service permit from the South Carolina Department of Health and Environmental Control.
2. Mike Tuten, one of the incorporators of Buck-N-Phase, Inc. and a manager of the business, has experience in the food preparation and service industry and is familiar with the DHEC food service permit requirements.
3. Petitioner intends to conduct special events at the proposed location such as senior citizens night, teen night (no alcohol sales), dance recitals, line dance instruction, and pool and dart tournaments.
4. The intended hours of operation of the proposed location are 11:00 a.m. - 1:00 a.m., except on Sundays.
5. The capacity of the proposed location is 1,000 persons, although maximum crowds of only 400-500 are expected.
6. The proposed location has on-site parking for approximately 150 automobiles.
7. Petitioner intends to have a daily staff of approximately thirteen persons on duty daily, including at least one professional security officer.
8. Petitioner expects revenues from food sales to exceed revenues from bar sales.
9. The proposed location is located within the jurisdiction of the Moncks Corner Police Department.
10. Moncks Corner Police are able to respond to a call at any location in the town within three minutes.
11. Between 1994 and the present, the Moncks Corner Police responded to seven alcohol- related calls at Ticker's Lounge.
12. The operation of the proposed location, to include the sale and on-premises consumption of beer, wine, and liquor does not pose a law enforcement problem.
13. The main entrance to the proposed location is located on the southern side of the building, facing Jones Lumber Co., on the opposite side of the property from Grooms' Texaco.
14. The proposed location is constructed of concrete block and steel.
15. 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.
16. Petitioner has never had a permit/license revoked.
17. Petitioner is of good moral character.
18. 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.
19. The sale and service of beer, wine, and liquor at the proposed location is not likely to have an adverse impact upon the surrounding community.
20. The proposed location is suitable for the issuance of the license and 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 subject matter jurisdiction in this matter pursuant to Chapter 23 of Title I of the 1976 Code, as amended, and S.C. Code Ann. § 61-1-55 (Supp. 1995).
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. Petitioner meets the personal requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995) to hold a beer and wine permit.
4. S.C. Code Ann. § 61-5-50 (Supp. 1995) provides for the criteria to be met for issuance of a business sale and consumption (minibottle) license.
5. Petitioner meets the personal requirements of § 61-5-50 (Supp. 1995) to hold a business sale and consumption (minibottle) license.
6. S.C. Code Ann. § 61-5-50 (Supp. 1995) also includes certain distance requirements in relation to churches, schools, and playgrounds, as measured and dictated by S.C. Code Ann. § 61-3-440 (Supp. 1995).
7. There are no churches, schools or playgrounds, as defined by S.C. Code Ann. § 61-3-440 (Supp. 1995), within the minimum three hundred feet (300') distance of the proposed location to render the location ineligible for a license to sell or serve liquor.

1. 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 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).
2. 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).
3. Any business establishment not engaged in the furnishing of lodging that applies for or holds a sale and consumption license, must be bona fide engaged primarily and substantially in the preparation and service of meals. Brunswick Capitol Lanes v. S.C. ABC Commission, 273 S.C. 782, 260 S.E.2d 452 (1979); S.C. Code Ann. §§ 61-5-10(1) and 61-5-20(4)(a) (Supp. 1995); and 23 S.C. Code Ann. Regs. 7-19 (1976). Petitioner's stated business plan for the proposed location meets the requisite statutory and regulatory meal preparation and service criteria to be eligible for a sale and consumption minibottle license.
4. Protestant's testimony that the well-being of the community would be jeopardized by the issuance of the permit and license was based upon opinion and conclusion and lacked specific factual support. 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).
5. There is no evidence that the operation of the proposed location or the sale and consumption of liquor, beer, and wine will cause a strain on local law enforcement efforts or that existing police protection is inadequate to protect the vicinity surrounding the proposed location. See Moore v. S.C. ABC Commission, 308 S.C. 167, 417 S.E.2d 555 (1992).
6. The issuance of the permit and license would not have an adverse impact upon the surrounding community, in light of the commercial nature of the surrounding area, the presence of other licensed locations in the vicinity, and the lack of any probative evidence that business activities of the proposed location including the sale of liquor, beer or wine, will have a detrimental impact upon the surrounding community. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
7. Based upon the totality of the evidence presented, the proposed location is a suitable and proper one to be licensed to sell and serve liquor, beer and wine.

ORDER

IT IS THEREFORE ORDERED that upon issuance of a Class A restaurant license by the Department of Health and Environmental control to Petitioner for the proposed location and upon Petitioner's satisfying all other applicable provisions of law for issuance of a business sale and consumption license, DOR shall issue the business sale and consumption license and on-premises beer and wine permit sought.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

May 30, 1997

Columbia, South Carolina