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 |