SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 12-60-1310 and 12-60-1320 (Supp. 1996) for a contested case hearing on the application of Johnny D. Smith for an on-premises beer and wine permit for a location known as Stadium Club Hitters Park and Training Center at 4510 Augusta Road, Lexington, South Carolina.

The Department of Revenue (Department) refused to process the petitioner's application on the basis that the proposed location was found unsuitable to be licenced to sell beer and wine in an Order dated August 10, 1993 which was affirmed by the Tax Commission on January 28, 1994. Pursuant to 23 S.C. Code Regs. 7-96 (1976), the Department refused to process the application until the Petitioner could demonstrate some material change with respect to the location.

By Order dated February 26, 1997, Administrative Law Judge Stephen P. Bates determined that there was a material change with respect to the proposed location because the nature of the proposed business activity differed greatly from the operation of the previous business, the physical amenities of the location have been altered and improved, and other businesses and licensed locations have opened since the previous denial. See Docket No. 96-ALJ-17-0450-CC, Order dated February 26, 1997, Amended March 12, 1997.

Based upon the written protests to the application, this matter was forwarded to the Division for a contested case hearing. After notice to the parties, a hearing was conducted on May 5, 1997. Prior to the hearing, protestors Robert Schaeffer and Walter Merrell moved to intervene, which was granted on May 5, 1997 at the hearing.

The entire record of the proceedings in Docket No. 96-ALJ-17-0450-CC were admitted in this matter.

Based upon the evidence presented, the application is granted. Any issues raised or presented at the hearing and not addressed in this Order are deemed denied. ALJD Rule 29.

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, Johnny D. Smith, is Vice President of Stadium Park Hitters Club and Training Center and is the applicant for an on-premises beer and wine permit for a location at 4510 Augusta Road, Lexington, South Carolina.
2. Smith is over the age of twenty-one, has no criminal record and is a person of good moral character.
3. He is a life-long resident of South Carolina and is a legal resident of the United States.
4. Smith has not previously held a beer and wine permit or a license for the sale of alcoholic liquors. Therefore, he has not had any permit or license suspended or revoked.
5. Notice of the application appeared at least once a week for three consecutive weeks in the Lexington County Chronicle and was posted at the location for fifteen days.
6. The proposed location includes baseball and softball batting cages, outdoor patios and walkways, a kitchen, and other indoor facilities for eating and viewing the batting cages in a press box type atmosphere. There are also video game machines and three video poker machines available for play by customers. The video poker machines are separated from the other games.
7. The hours of operation are 4:00 p.m. to 10:00 p.m. daily. There are plans to open about lunch time.
8. The parking area for the proposed location is an unpaved, gravel lot. Arrangements have been made with the Bright Ideas Child Development Center to use its parking facilities for any additional space as needed.
9. There are two entrances to the parking area of the proposed location. One opens to Augusta Highway (U.S. Highway 1) and the other access is from Dickert Drive.
10. Dickert Drive is an entrance to Sycamore Acres, a residential area. Dickert Drive is a dead-end street. The other entrance to the residential area is Maple Drive. Maple Drive provides access to other residential areas and has some commercial businesses located near the proposed location.
11. The proposed location is surrounded by Handi Homes, a business that sells small storage buildings/sheds. The buildings/sheds are displayed next to and behind the proposed location.
12. The nearest residence to the proposed location is at least 340 feet
13. At or before the time of the previous denial, the business establishment directly across Dickert Drive from the proposed location was a restaurant (101 Seafood and Steaks, Inc.) licensed to sell beer and wine and mini-bottles, but it eventually closed.
14. This closed restaurant business is now Bright Ideas Child Development Center, Inc. and currently serves as an after school day care facility for thirty-two children, ages six to twelve. It generally closes between 5:30 p.m. and 6:30 p.m. The center has an enclosed playground for use by the children. Bright Ideas is located 147 feet from the proposed location.
15. Children and adults from the Sycamore Acres subdivision use the facilities at the proposed location. There are no sidewalks in Sycamore Acres. Many of the adults and children who go to the proposed location ride bicycles or walk and must do so in the street.
16. U.S Highway 1 is predominately commercial. This commercial area includes a shopping center, convenience store, gas stations, fast food restaurants, mobile home sales, and a flea market. Some of these businesses are licensed to sell beer, wine or alcoholic liquors. Areas behind these businesses are generally residential.
17. There are no churches or schools in the vicinity. There is a playground or park with tennis courts located on Maple Road approximately three-fourths of a mile from the proposed location. Softball fields are located one-half mile (Oak Grove Park) and two miles (Pine Grove Park) from the proposed location.
18. The protestors and intervenors objected to the application because they fear the peace, quiet and safety of their neighborhood would be disturbed by increased traffic, noise and loud music, lights from the batting cages at night, and loose balls from the cages. In addition, they object to the existence of video poker machines on the premises and the sale of beer and wine in the presence of children.
19. None of these persons protested the existence of a beer and wine permit and mini-bottle license at 101 Seafood when it existed. None object to the sale of beer and wine at the stadium where the Columbia Bombers baseball team plays.
20. The batting cages at the proposed location are enclosed by a fence. There are no speakers to allow music or announcements outside of the proposed location. There is no live entertainment.
21. A representative of the Lexington County Sheriff testified that the location has not had any problems with law enforcement and no problems with increased traffic or traffic problems because of the presence of the location.

Based upon the foregoing 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-premises 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. S. C. 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. Augusta Road (Highway) is predominately commercial businesses. The proposed location is surrounded by a business. The child care center which originally protested the application, did not appear at the hearing and evidence was presented that the center has given permission for the use of its parking lot for additional parking for the proposed location.

7. Only generalities, opinions and conclusions, without factual support, were offered to support the protestors, contention that the proposed business would have an adverse impact on the community. Most of the objections were against having a batting park as opposed to the impact from the proposed sale of beer and wine. The allegations of increased traffic also was refuted by the evidence. Such unsupported allegations are an insufficient basis for denial of the permit. 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. The issuance of the permit would not have an adverse impact upon the surrounding community.

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

10. 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 already exist in the area. The evidence did not show that there would be any increased traffic problems for the neighborhood as a result of the existence of the location.

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

ORDERED, that the application of Johnny D. Smith, d/b/a Stadium Club Hitters Park and Training Center for an on-premises beer and wine permit for the location at 4510 Augusta Road, Lexington, South Carolina 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 7, 1997.

Columbia, South Carolina