South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Charlie A. Chapman, d/b/a Riverview Cafe, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Charlie A. Chapman, d/b/a Riverview Cafe, Inc.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0166-CC

APPEARANCES:
For the Petitioner: Harry A. Chapman, Jr., Esquire

For the Respondent/South Carolina Department of Revenue: Arlene D. Hand, Esquire (Excused from appearance at the hearing)
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1996) for a hearing pursuant to the application of Charlie A. Chapman, d/b/a Riverview Cafe, Inc. ("Applicant" or "Petitioner") seeking an on-premises beer and wine permit (AI 111906) for the premises located at 799 Mountain Creek Road, Greenville County, South Carolina ("location").

A hearing was held on May 30, 1997, at the Spartanburg County Courthouse, Spartanburg, South Carolina. The issue considered was the suitability of the proposed location.

The application was protested by twenty-three individuals. Derrick Todd Kelly was the only protestant who appeared at the hearing. He testified at the hearing in opposition to the issuance of the permit. The South Carolina Department of Revenue ("Department") asserted in its Motion to Be Excused dated April 9, 1997 that there was no controversy between the Petitioner and the Department and that the sole issue was the question of the suitability of the location based upon the filed protests. The Department's Motion to Be Excused from appearing at the hearing was granted by Order dated April 24, 1997.

The application request is granted.







EXHIBITS

Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of the record, without objection. Petitioner placed into the record the following:

1. Exhibit 1--ten photographs.

2. Exhibit 2--a letter from Ms. Pamela M. Taylor, crime analyst with the Greenville County Sheriff's office, wherein she enumerated the "response time" to requests for assistance in the general area of the proposed location.

3. Exhibit 3--a report from the Greenville County Sheriff's Office showing the number of calls for assistance in "Beat 6" which includes the area surrounding the proposed location.

4. Exhibit 4--a map of Greenville County outlining the various locations of each of the "Beats" for law enforcement within the county.

5. Exhibit 5--a report from the South Carolina Forestry Commission dated May 6, 1997 outlining the number of forest fires in Greenville County for the Calendar Year 1996.

6. Exhibit 6--a letter dated April 30, 1997 from the Dunklin Fire District stating that it has no records of any calls for grass, forest, or any other types of fires in the vicinity of the Riverview Cafe for the years 1996 to present.

7. Exhibit 8--a menu of the Riverview Cafe.

8. Exhibit 9--a letter dated May 26, 1997 from Mr. & Mrs. David Keefe who live approximately 150-175 yards from the Riverview Cafe. They state that they have no objection to the issuance of an on-premises beer and wine permit to the applicant.



FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties and the Protestant, I make the following Findings of Fact by a preponderance of evidence:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place, and subject matter of the hearing was timely given to all parties and all protestants.

3. Petitioner is seeking an on-premises beer and wine permit for a rural cafe located at the intersection of Mountain Creek Road and U. S. Highway 76 (Princeton Road) in Greenville County, South Carolina. The location is in the southern part of the county and has ingress and egress from Mountain Creek Road. It is approximately 1.8 miles from the intersection of U. S. Highway 76 and U. S. Highway 25, in the Town of Princeton, South Carolina. At that location are two convenience stores that sell beer and wine for off- premises consumption. It is approximately 4.5 miles from the City of Honea Path.

4. The real property on which the building is located consists of 5.61 acres, owned by A & S Enterprises. The principals of A & S Enterprises are the applicant, Charlie A. Chapman, and Clyde Kastner. A & S Enterprises leases the property to Riverview Cafe, Inc.

5. Riverview Cafe, Inc. ("cafe" or "restaurant") was incorporated in the State of South Carolina. Its Articles of Incorporation were filed with the Secretary of State on June 10, 1996. Its principal business is listed as the operation of a restaurant. Charlie A. Chapman and Clyde Kastner are listed as the directors and shareholders. Petitioner is in the process of purchasing Mr. Kastner's interest.

6. The cafe was opened on January 1, 1996. Breakfast and short order menu items are served to its customers.

7. There have been no problems at the location since its opening on January 1, 1996.

8. The hours of operation of the restaurant are from 8:00 a.m. to 10:00 p.m., Monday through Saturday. The restaurant is closed on Sunday.

9. Mr. Chapman is a "hands-on" owner and manager of the restaurant. He has two employees, Shirley Cooley and Jimmy Tucker, who assist him in its operation. Both of these employees have previously worked at establishments where beer and wine was sold for on-premise consumption. They are familiar with the rules regulating the sale of beer and wine. Neither of these employees have been charged with a violation of the alcohol and beverage control laws or regulations.

10. There are spotlights affixed to the exterior of the building. Security cameras are located both inside and outside the building.

11. Applicant was born across the road from the proposed location and has lived in the general vicinity all his life. At the present, he lives approximately six miles from the location.

12. Applicant was born on April 7, 1943 and is fifty-four (54) years old.

13. Applicant has been employed for the last twenty one years with Michelin Corporation as a quality technician.

14. Applicant has never had a beer and wine permit revoked.

15. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Greenville News, a newspaper of general circulation in the local area where the Petitioner proposes to engage in this business.

16. Notice of the application has been provided to the general public by SLED through the posting of a sign for a minimum of fifteen (15) days at the site of the proposed location.

17. Petitioner is of good moral character.

18. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 1996) concerning the residency, age and moral character of the Petitioner are properly established as are the publication and notice requirements.

19. The Greenville County Sheriff's Office did not protest the application request.

20. The sole protestant appearing at the hearing, Derrick Todd Kelly, is twenty eight (28) years of age. He is married and lives in Simpsonville, South Carolina, approximately twenty eight (28) miles from the proposed location. His parents live in the general vicinity of the proposed location. They own land across U. S. Highway 76 and some land approximately 0.6 mile from the location. He has no interest in the real property owned by his parents. His parents sell lots or tracts upon which mobile homes are placed.

21. Attached to a protest letter is a copy of one page of a deed as recorded in the office of the Register of Mesne Conveyance, Greenville County, South Carolina. This page reflects a restriction on the sale of beer, wine or alcoholic beverages on the property conveyed in the deed. However, since the description of the property and the names of the grantor and grantee are not provided, consideration is not given by this tribunal to this restriction as affecting the issuance of the permit at the proposed location.

22. There are no schools, churches, or playgrounds in close proximity to the proposed location.

23. There is appropriate parking for customer vehicles at the location. There should be no problem with cars or vehicles parking in the public roadways.

24. The Department would have issued the beer and wine permit but for the protests that were filed.



CONCLUSIONS OF LAW

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

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division is empowered to hear this case and issue a Final Decision.

2. S.C. Code Ann. § 61-4-520 (Supp. 1996) sets forth the requirements for the issuance of a beer and wine permit which provides as follows:

No permit authorizing the sale of beer or wine may be issued unless:

1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.

2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

5) The applicant is twenty-one years of age or older.

6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.

8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

3. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact (judge) in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5 It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

6. 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence of other licensed locations in the immediate vicinity and the existence of students and small children in the area.

7. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. In this case, the sole protestant did not voice any concerns which could be considered by this tribunal in denying the issuance of the on-premises beer and wine permit for the proposed location. The evidence does not rise to the level of that required to show a detriment to the community. Further, there is no evidence of any hazardous or congested traffic conditions or safety concerns for the children and citizens of the community. The evidence provided at the hearing by the protestant together with the concerns addressed by other protestants in their letters to the Department do not convince me that the grant of this permit would greatly impact property values, increase stress in terms of the safety and well-being of the citizens who live in the neighborhood, or create any law enforcement problems. Also, the cafe has not had any problems with its customers, with law enforcement, or with neighbors during the time it has been open for business as a restaurant.

This tribunal is particularly concerned with protecting the safety and well-being of citizens in the community they live in. They are entitled to live in their homes in a quiet and peaceful manner. If a situation at a location rises to the level that these rights are interfered with, then such evidence may be presented to the Department at the time of any future renewal or issuance of a permit at the location.

9. Without sufficient evidence of an adverse impact on the community, the application must be granted if the statutory criteria are satisfied. The fact that protestants object to the issuance

of the permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C. J. S. Intoxicating Liquors § 119 (1981).

10. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Judge, as the trier of fact authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

11. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an applicant meets the requisite qualifications and conditions, is a fit person and the proposed place of business is a proper one, the department must issue the permit after payment of the fee as required by law.

12. Standards for judging the suitability of a proposed location for the sale of beer, wine or liquor are not determined by a local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, regulated by the State.

13. I conclude that the Petitioner has met his burden of proof in showing that he meets all of the statutory requirements for holding an on-premises beer and wine permit at the location. I further conclude that the proposed location is a proper one for granting the permit.







ORDER

Based upon the above Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Charlie A. Chapman, d/b/a Riverview Cafe, Inc. for an on-premise beer and wine permit for the restaurant located at 799 Mountain Creek Road, Greenville County, South Carolina, is granted, and it is further

ORDERED the Department shall issue the permit to Petitioner upon his compliance with the requirements of S.C. Code Ann. § 61-2-160 (Supp. 1996) and upon Petitioner's payment of the required fees and costs.

AND IT IS SO ORDERED.



______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

June 12, 1997


Brown Bldg.

 

 

 

 

 

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