South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Clarence Evans, d/b/a Climax vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Clarence Evans, d/b/a Climax

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0562-CC

APPEARANCES:
Charles E. Howard, Esquire, for Petitioner

Arlene D. Hand, Esquire, for Respondent (not present at hearing)
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division on the application of Clarence Evans, d/b/a Climax, for an on-premises beer and wine permit for a business located at 403 Rutherford Road, Greenville, South Carolina. After notice to the parties, a hearing was conducted on December 9, 1997 in Greenville.

Based upon the evidence presented, the application for the beer and wine permit is denied. Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(B).

FINDINGS OF FACT

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:

The Petitioner, Clarence Evans, applied for an on-premises beer and wine permit on June 3, 1997, for the premises located at 403 Rutherford Road, Greenville, South Carolina.

The Petitioner is over the age of twenty-one.

The Petitioner has legally resided in the United States and has held a principal place of abode in South Carolina for more than 30 days prior to the date of application.

The Petitioner has had no criminal convictions in the past 10 years and is a person of good moral character.

The proposed location operates as a private club, with a restaurant and game room, which operates from 6:00 p.m. to 1:00 a.m., Monday through Saturday.

Three Class III video game (video poker) machines are operated at the proposed location.

If the beer and wine permit were granted, Rhonda Platt would be primarily responsible for operating the location. No background check on Rhonda Platt was undertaken as a part of the Department of Revenue's processing of the application.

Climax is located within the city limits of Greenville.

The proposed location is located near the intersection of Rutherford and Old Paris Mountain Roads. The area immediately surrounding the proposed location is primarily residential in nature, with some commercial properties.

Parking at the proposed location consists of three parking spaces immediately in front of the building and approximately twenty spaces located 277 feet away from the proposed location, across a four lane thoroughfare.

Climax accommodates crowds numbering between fifty and one hundred people on a regular basis.

Foster's Grocery, which is adjacent to the proposed location, has an on-premises beer and wine permit.

The Basement Club is located across the street from the Mountain View Holiness Church and has an on-premises beer and wine permit and an on-premises minibottle license.

The Mountain View Holiness Church, protested the application on the basis of the proposed location's close vicinity to the church. The protestants appearing on behalf of Mountain View Holiness Church expressed concern that licensing the location would escalate violence and drug problems in the area.

The Mountain View Holiness Church is on the same block as the proposed location, approximately 315 feet away.

The Mountain View Holiness Church has a congregation of approximately 80 persons. The church conducts weekly worship services and bi-weekly Bible study meetings in the afternoon and evening hours and on weekends.

The closest residence is approximately ten feet from the proposed location.

Notice of application appeared in The Greenville News on June 5, 18, and 25, 1997. Notice was also posted at the proposed location for the time period required.

The applicant is suitable for issuance of an on-premises beer and wine permit.

The location is unsuitable for issuance of an on-premises beer and wine permit.

CONCLUSIONS OF LAW

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

The Administrative Law Judge Division holds subject-matter jurisdiction over contested cases concerning the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260 (Supp. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (Rev. 1986 & Supp. 1997), and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1997).

"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. 1997).

The Petitioner's plans to hold a beer and wine permit while another person operates 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); cf. S.C. Code Ann. § 61-4-150 (Supp. 1996). The Petitioner's intent is to maintain the permit in his name while another person is primarily in control of running the business. As the State has not had an opportunity to check the background of Rhonda Platt, such an arrangement would thwart the intent of Section 61-4-520, which requires the State to determine that those selling beer and wine are fit to do so.

S.C. Code Ann. § 61-4-520 (Supp. 1997), 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. . . .

(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.

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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

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).

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); 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).

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).

The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not support by facts. Taylor v. Lewis, supra; Smith v. Pratt, supra.

The South Carolina Supreme Court has determined that a finding that a location is near a church will support a conclusion that the location is unsuitable for the issuance of a beer and wine permit. "[P]roximity of a location to a church, school or residence is a proper ground, by itself, on which the Commission may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991).

The location of Climax is unsuitable because of its proximity of 315 feet to the Mountain View Holiness Church.

The presence of video poker machines renders the proposed location unsuitable for a beer and wine permit. S.C. Code Ann. § 61-4-580 contemplates the protection of the public by preventing individuals under the influence of beer or wine from gambling excessively. See Vaughn v. South Carolina Dep't of Revenue, 97-ALJ-17-0333-CC (December 12, 1997). Gambling involves "[m]aking a bet. Such occurs when there is a chance for profit if a player is skillful and lucky. A play for value against an uncertain event in hope of gaining something of value. It involves, not only chance, but a hope of gaining beyond the amount played." Black's Law Dictionary 679 (6th ed. 1990) (citations omitted). The play of video poker machines for the opportunity of payouts pursuant to S.C. Code Ann. § 12-21-2791 (Supp. 1996) constitutes gambling. Cf. Reyelt v. South Carolina Tax Comm'n, C/A No. 6:93-1491-3 and C/A No. 6:93-1493-3 (D.S.C. 1993). S.C. Code Ann. § 61-4-580 (Supp. 1996) provides in part that:

No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder's permit . . . (3) permit gambling or games of chance. . . .

The proposed location is unsuitable for an on-premises beer and wine permit because of insufficient parking near to the proposed location. The record here establishes a safety hazard posed by the prospect that patrons that have consumed alcohol must cross a four-lane thoroughfare in order to reach Climax's limited parking area. Such a safety hazard constitutes grounds for denial of the permit on the basis of unsuitability of the location. Cf. Texas Alcoholic Beverage Comm'n v Sierra, 784 S.W.2d 359 (Tex. 1990); 45 Am. Jur. Intoxicating Liquors §§ 162, 182.

The issuance of an on-premises beer and wine permit would have an adverse impact on the community.

The location is unsuitable for issuance of an on-premises beer and wine permit.

ORDER

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

ORDERED, that the application of Clarence Evans, d/b/a Climax, for an on-premises beer and wine permit for a business located at 403 Rutherford Road, Greenville, South Carolina, is DENIED.

AND IT IS SO ORDERED.

__________________________________

ALISON RENEE LEE

Administrative Law Judge

February 10, 1998

Columbia, South Carolina


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