SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the application of Albino Logan, d/b/a East End Cafe, for an on-premises beer and wine permit for the business located at 211 Bouknight Ferry Road, Saluda, South Carolina. After notice to the parties, a hearing was conducted on December 1, 1997. The Saluda County Sheriff's Office and the Saluda City Police Department moved to intervene, and their motions were granted. Based upon the evidence presented, the application for the beer and wine permit is DENIED. Any issues raised in the proceeding or hearing of this matter that are not addressed in this Order are deemed denied. ALJD Rule 29(B).

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

1. The Petitioner, Albino Logan, applied for an on-premises beer and wine permit for the East End Cafe located at 211 Bouknight Ferry Road, Saluda, South Carolina.
2. The Petitioner is over the age of twenty-one and has resided in South Carolina for over 77 years.
3. She has never been convicted of a crime and is a person of good moral character.
4. The Petitioner owns the land and building of the East End Cafe.
5. The Petitioner held a beer and wine permit in her name for the proposed location from 1967 until 1994.
6. Since 1973, although the permit was in her name, the Petitioner did not manage the East End Cafe.
7. If the beer and wine permit were issued, Petitioner would take no part in the operations of the business of the East End Cafe. She plans to lease the business to another person and allow that person to operate the business under her permit. She has not identified the individual who would be responsible for operating the business. Petitioner also indicated that she did not plan to check the background of the person chosen to operate the East End Cafe.
8. The proposed location would operate as a restaurant and bar. The daily hours of operation would be from 6 a.m. until 2 a.m., except for Sundays when the location would be closed.
9. The East End Cafe is located inside the city limits of Saluda.
10. The Saluda County Sheriff's Office and the Saluda City Police Department protested the application on the basis of the business' reputation and lack of police protection.
11. Representatives of law enforcement presented evidence of repeated criminal activity or disturbances at the location. The incidents involved drug-related incidents, disorderly conduct, weapons violations, and robbery. The Sheriff's deputy also expressed concern, given the applicant's age, about her ability to control events at the location, as well as the operation of the business.
12. Although many of these incidents occurred outside of the building, the presence of the licensed location created and perhaps contributed to the resulting law enforcement problems.
13. The location immediately surrounding the location has a crime problem.
14. The Sheriff's Office is not adequately staffed to provide sufficient police backup to the Saluda Police Department if a disturbance occurs at the location.
15. Several residences, a park, a middle school, and a church are located near to the East End Cafe, although not in close proximity to the business.
16. Notice of the application was advertised in The Saluda Standard-Sentinel on May 8, 15 and 22, 1997. Notice was also posted at the proposed location for the time period required.
17. The location's history of criminal activity in recent years renders it unsuitable for an on-premises beer and wine permit.

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

1. The Administrative Law Judge Division has subject-matter jurisdiction in contested cases including the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260 (Supp. 1996). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (Rev. 1986 & Supp. 1996), and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1996).
2. "A person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1996).
3. S.C. Code Ann. § 61-4-520 (Supp. 1996), which sets forth the requirements for the issuance of a beer and wine permit, 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. . . .

...

(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. . . .

1. "A beer permit is a personal privilege granted by the State and cannot be transferred from one person to another. . . ." S.C. Code Regs. 7-74 (1976).
2. The Petitioner's plans to hold a beer and wine permit while another person runs the business contravenes the requirement that anyone selling beer and wine have a permit. See S.C. Code Ann. § 61-4-500 (Supp. 1996) ("A person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply to the department for a permit to sell these beverages") (Emphasis added) and S.C. Code Ann. § 61-4-150 (Supp. 1996) ("If beer or wine is sold to anyone by a person who does not have a valid license to make the sale, all beer and wine found on the premises of the person is contraband and must be seized by a peace officer and treated as contraband liquor"). Ms. Logan's intent is to be able to control the business activity by maintaining the permit in her name. In the event there are any problems, she would be able to replace the person operating the business. The proposed business arrangement is not one in which Ms. Logan would hire someone to manage the business, rather the operator would pay Ms. Logan to operate the business as his/her own, without control by Ms. Logan. Ms. Logan would use the license as a tool of enforcement. Such an arrangement would thwart the clear intent of Section 61-4-520, which requires the state to determine that those selling beer and wine are fit to do so.
3. The factual determination of whether or not an application is granted or denied is within the prerogative of the executive 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. As 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. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. 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); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
6. 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).
7. In considering suitability of location, it is relevant to consider the 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). An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Id.
8. Where crime is a factor in a community, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); see also Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (fact finder may consider whether "there have been law enforcement problems in the area").
9. The evidence clearly establishes that this business has had problems with law enforcement in the past. The longstanding crime situation in the surrounding area would not be likely to safely support a licensed premises. The character of the business would remain the same, and would continue to present a challenge for law enforcement.
10. When the Petitioner previously held the beer and wine permit for this location, she did not personally manage the location, and consequently did not control the premises. Further, Petitioner has not established that she would be able control the premises if she chose to manage the business.
11. The location is unsuitable for the issuance of an on-premises beer and wine permit.

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

ORDERED, that the application of Albino Logan, d/b/a East End Cafe, for an on-premises beer and wine permit for the location at is DENIED.

AND IT IS SO ORDERED.

__________________________________

ALISON RENEE LEE

ADMINISTRATIVE LAW JUDGE

December 16, 1997

Columbia, South Carolina