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 & Supp. 1996) for a hearing
pursuant to the application of Angela W. Ross, d/b/a Rack-Em-Up ("Petitioner") for an on-premises
beer and wine permit (AI 111732) for the premises located at 214 U Street, Honea Path, Anderson
County, South Carolina ("location").
A hearing was held on August 5, 1997, at the offices of the Administrative Law Judge
Division, ("Division"), Columbia, South Carolina. The issue considered was the suitability of the
proposed location.
The application was protested by the following: Blessed Hope New Life Gospel Church, Lee
Rawl, principal of Gantt Elementary School, Glenda Ricketts, Cathy Knight, Biff Kimmons, Patti
P. Barrett, Debbie Hawkins, Elizabeth Plemmons, Mary Waldron, Gail F. Riddle and Helen S.
Wilson. Reverend Fay Terry, pastor of the Blessed Hope New Life Gospel Church ("Church") was
the only protestant appearing at the hearing. She testified in opposition to the grant of the
application.
The Church moved to intervene and its motion was granted without objection. The South Carolina
Department of Revenue ("Department"), as set forth in the agency transmittal form and its Motion
to Be Excused, advised the Division it would have issued the permit to the Petitioner but for the
protest. The Department's Motion to Be Excused from appearing at the hearing was granted by
Order dated May 19, 1997.
The application request for the on-premises beer and wine permit is granted.
EXHIBITS
Certified copies of documents forwarded to the Administrative Law Judge Division from the
Department are made a part of the record. At the hearing, the petitioner placed into the record,
without objection, a video of the proposed location and the surrounding area. Respondent placed
into the record, without objection, two exhibits, a tax map of the general vicinity at the proposed
location, and various incident reports.
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 or protestants, I
make the following Findings of Fact by a preponderance of the 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, the protestants and the intervenor/Church.
3. Petitioner is seeking an on-premises beer and wine permit (AI 111732) for a
club/billiards lounge known as "Rack-Em-Up", located at 214 U Street, Honea Path, Anderson
County, South Carolina. The location is within the city limits of City of Honea Path and is primarily
residential in nature; however, a beauty salon and a funeral home are located across the street..
4. The location fronts on U Street and is one lot away from the intersection of U Street
and Rouse Street. Both Liberty Baptist Church and Gantt Elementary School are approximately two
blocks in distance from the location. Blessed Hope New Life Gospel Church is also located on U
Street but is farther in distance from the proposed location than the school.
5. Across the street from the location is a small club/bar where beer and wine are sold
for on-premises consumption. Inside that location are three or four tables, a juke box and a bar. No
pool tables are located inside.
6. All churches and schools in the general neighborhood are more than three hundred
feet in distance from the proposed location. See Intervenor's Exhibit # 2.
7. The building at the location has been utilized in the past for a lounge or club. No
other businesses are proposed to be located inside the building at the present. The previous
establishment at this location was called the "Last Stop Lounge". Although there was a history of
criminal violations at this location when it was previously permitted by the Department, Petitioner
was not a part of the ownership or management during that period.
8. There is a vacant lot between the location and the intersection of U Street and Rouse
Street. Playground equipment used to be located on this lot but has been removed therefrom. The
owner of that lot is unknown.
9. Petitioner was born on January 19, 1965 and is thirty two (32) years of age. She lives
in Greenville, South Carolina. She is single and works at G & L Promotional Fabrics. Her hours
of employment at this company are from 8:30 a.m. to 4:00 p.m., Monday through Thursday, and
from 8:30 a.m. to 1:00 p.m. on Friday.
10. Petitioner is a resident and citizen of the State of South Carolina and has been for
more than thirty days prior to the filing of the application. She is leasing the location from its
owners, William Melvin Mattison and Samuel McMullin, for the sum of $425.00 monthly. Neither
of the owners of the building have any interest in this business nor will they participate in its
management or ownership in the future.
11. Petitioner has never had a beer and wine permit or a business sale and consumption
license revoked.
12. Petitioner intends to offer chips, hot dogs and sandwiches to her patrons. Petitioner
intends that the business will operate as a billiards or pool hall with two pool tables.
13. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Belton & Honea Path News Chronicle, a newspaper of general circulation in the local
area where the Petitioner proposes to engage in this business.
14. Notice of the application has been given by the display of a sign for a minimum of
fifteen (15) days at the site of the proposed location by a State Law Enforcement Division officer.
15. Petitioner is of good moral character and has no record of any criminal convictions.
16. Petitioner intends to open the business the general public between the hours of 4:00
p.m. and 12:00 a.m., Monday through Saturday. She intends to take an active part in its management
and to be present during its normal operating hours when she is not gainfully working at her job, i.e.,
from approximately 4:30 p.m. until closing. Her brother will also assist her in its operation.
17. Only individuals twenty one (21) years of age or older will be allowed in the location.
18. Neither loud music nor video game machines will be allowed at the location.
19. Petitioner will install additional exterior lights at the location to ensure that the areas
outside are well lighted for security purposes.
20. There is sufficient parking at the location to accommodate its patrons and to prevent
parking in the public thoroughfares.
21. The application was not protested by the local police department nor by the county
sheriff's office.
22. The Reverend Fay Terry of the Blessed Hope New Life Gospel Church testified in
opposition to the application. It is her position as the spokesperson of her church that activities at
this location will be a bad influence on the parishioners at her church and the children who attend
the elementary school. She feels that activity at a billiard/pool hall generates crime. Her concerns
also address drinking alcohol to the extreme as well as the using and selling of drugs at the location.
Also, she is concerned that the proposed business will bring increased traffic with its attendant
problems.
23. Except for the protests filed, the Department would have issued the beer and wine
permit.
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 has jurisdiction in
this matter.
2. S.C. Code Ann. § 61-4-520 (Supp. 1996), which sets forth the requirements for the
issuance of a beer and wine permit, provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1) The applicant, any partner of 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 her 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 her 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 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 and 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. Petitioner has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp.
1996), concerning her residency, age and moral character, as well as the publication and notice
requirements.
4. S.C. Code Ann. § 61-6-120 (Supp. 1996) states that the Department shall not issue
certain licenses to a place of business within a certain distance of a church, school or playground;
however, locations for which beer and wine permits are requested are not subject to those specific
restrictions.
5. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer
v. S.C. ABC 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.
Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 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. Although "proper location" is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). 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. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court 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).
7. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition of a permit is opinions and
conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this
case, the testimony of the protestants consisted mainly of opinions and a claimed detriment to the
community which is largely conjectural. Although there has been a history of criminal violations
in the past at this location, there was not sufficient evidence presented at the hearing that the granting
of a permit and license at the location to the Petitioner would result in the same situation as in the
past. Petitioner is aware of the problems that occurred at this location and is also aware that if they
occur under her management, she will be subject to monetary penalties and to the loss of the permit.
I find that the petitioner is credible in her appearance and testimony and that the permit should be
granted to her. Further, if a situation at a permitted location rises to the level that the safety and well-being of residents of the community are threatened, then evidence to that effect may be presented
to the Department at the time of any future renewal or issuance of a permit.
8. 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, as regulated by the State.
9. 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.
10. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not
rights or property, but are rather privileges granted in the exercise of the police power of the State
to be used and enjoyed only so long as the restrictions and conditions governing them are complied
with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to
revoke it, that tribunal is likewise authorized to 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. § 61-2-160 (Supp. 1996) prohibits the issuance, renewal or transfer
of a permit or license under Title 61 if the applicant owes state or federal government delinquent
taxes, penalties or interest.
12. I conclude that the Petitioner has met her burden of proof in showing that she meets
all of the statutory requirements for holding a retail 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 Angela W. Ross, d/b/a Rack-Em Up, for an on-premises
beer and wine permit at 214 U Street, Honea Path, Anderson County, South Carolina is granted, and
IT IS FURTHER ORDERED that the Department of Revenue issue the permit upon
Petitioner's 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
October 3, 1997 |
