SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the application of Xavier B. Hardin, d/b/a Hardin's Lunch, for an on-premises beer-and-wine permit for the business located at 121 East Madison Street, York, South Carolina. After notice to the parties, a hearing was conducted on December 1, 1997. The City of York Police Department moved to intervene which was granted. Based upon the evidence presented, the application for the beer-and-wine permit is GRANTED. 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, Xavier B. Hardin, applied for an on-premises beer and wine permit (AI# 114076) for Hardin's Lunch, located at 121 East Madison Street, York, South Carolina.
2. The Petitioner is over the age of twenty-one and has resided in South Carolina for at least thirty days before the date of application.
3. The Petitioner was convicted of assault and battery in 1980; since that time he has not been convicted of a crime other than minor traffic offenses.
4. The conviction is too remote in time to reflect on his character and the Department has previously issued a permit to Petitioner. He is therefore a person of good moral character.
5. The Petitioner held a beer and wine permit in his name for and operated the location from February 1986 until May 1995. During that time his permit was neither suspended nor revoked.
6. In 1995, Petitioner closed the business in order to renovate the proposed location. The premises were painted, and the floors and booths were replaced.
7. The proposed location has existed for forty-five years and was previously managed by the Petitioner's father. Petitioner owns the building in which Hardin's Lunch operates.
8. Petitioner will manage Hardin's Lunch, which will operate as a restaurant. The daily hours of operation would be Monday through Friday from 6:00 p.m. until 3:00 a.m., on Saturday until 12 midnight and closed Sunday. There are pool tables and a jukebox.
9. Hardin's Lunch is located within the city limits of York.
10. The York Police Department protested the application on the basis of the business reputation and lack of police protection.
11. Incidents involving drugs, robbery, and firearms have occurred intermittently in the area around Hardin's Lunch. The relevant incidents submitted occurred between 1991 and 1993 and included drug crimes, such as possession of crack cocaine and of marijuana. The area near the location also has a history of violent crime, including armed robbery and assault and battery.
12. A number of the illegal incidents have occurred in the early morning hours in the area immediately surrounding the location. Based upon the history of criminal activity near the proposed location, a beer and wine permit should be issued with the restriction that the business close no later than 2:00 a.m. By closing no later than 2:00 a.m., a permitted location would be better able to ensure the safety of patrons exiting the establishment and could help to prevent conditions amenable to criminal activity in the area.
13. None of the incidents appear to have occurred as a direct result of the Petitioner's management of the location; rather the relevant incidents occurred outside of the business. Petitioner has been involved with contacting police as necessary when criminal activity has been observed.
14. There are no churches, schools, or playgrounds within 300 feet of the proposed location.
15. Notice of application appeared at least once a week for three consecutive weeks in The Yorkville Enquirer. Notice was also posted at the proposed location for the time required.
16. The applicant is a suitable person for issuance of an on-premises beer and wine permit.
17. The location, subject to restrictions, is suitable for issuance of 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 over contested cases concerning 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); 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 in part:

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. . . .

1. 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).
2. 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).
3. 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).
4. 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 found. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
5. In considering the suitability of the location, it is relevant to consider the history of the location and to determine whether the testimony in opposition of 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). 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.
6. In addition, 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"). The previous operation of the location by the Petitioner has not significantly exacerbated crime in the area.
7. 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. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Based upon the history of criminal activity near the proposed location, a beer and wine permit should be issued with the restriction that the business close no later than 2:00 a.m.
8. The applicant meets the qualifications for the issuance of a beer and wine permit.
9. The location, subject to restrictions, is suitable for 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 Xavier B. Hardin, d/b/a Hardin's Lunch, for an on-premises beer and wine permit for a business located at 121 East Madison Street, York, South Carolina is GRANTED.

IS FURTHER ORDERED that the on-premises beer and wine permit is granted with the restriction and condition that Hardin's Lunch close no later than 2:00 a.m. Monday through Friday and 12 midnight on Saturday.

The Department shall issue an on-premises beer and wine permit upon the payment of the appropriate fees.

AND IT IS SO ORDERED.

__________________________________

ALISON RENEE LEE

ADMINISTRATIVE LAW JUDGE

December 17, 1997

Columbia, South Carolina