SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the application of Diana L. Simpkins, d/b/a Pit Stop Pub, for an on-premises beer-and-wine permit for the business located at 2868 Bamberg Road, Orangeburg, South Carolina. After notice to the parties, a hearing was conducted on December 4, 1997.

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, Diana L. Simpkins, d/b/a Pit Stop Pub, applied for an on-premises beer and wine permit (AI# 116946-116947) on August 26, 1997, for the premises located at 2868 Bamberg Road, Orangeburg, South Carolina.
2. The Petitioner is over the age of twenty-one.
3. 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.
4. The Petitioner has no criminal record and is a person of good moral character.
5. Petitioner has owned the building for ten years. She leased the premises, and the tenants operated with a beer and wine permit from March 1994 until July 1997. During that time the beer and wine permit was neither suspended nor revoked.
6. Petitioner has been operating the Pit Stop Pub for three months under a temporary beer and wine permit and will continue to manage the club. During this time there have been no complaints about the business.
7. The proposed location will operate as a restaurant and bar open from 11:00 a.m. to 12 midnight.
8. The Pit Stop Pub is located in an unincorporated area of Orangeburg County.
9. The Reverend Georgia Fredericks, pastor of United Faith Temple, protested the application on the basis of noise. Fredericks testified that she had heard and had received complaints about profane language and other noise from patrons of the Pit Stop Pub.
10. The United Faith Temple is located in buildings which were formerly used as a motel, adjacent to the proposed location. The church has been in this location for four years and is very active in the community. Church activities include worship services, children's activities, and classes for men. The church also offers a summer youth camp. Other activities occur away from the church property.
11. Since the major complaint from the church involves noise as a result of the close proximity of the proposed location to the church, the following restrictions should be added to the permit: the location should not install any speakers outside the building; the doors to the location should remain closed while music is played; and, the Petitioner should patrol the parking areas regularly outside the location to ensure that persons do not loiter or create any disturbances.
12. Notice of application appeared in The Times and Democrat on August 28 and September 4 and 11, 1997. Notice was also posted at the proposed location for the time period required.
13. But for the protest filed, the Department of Revenue would have issued the permit.
14. The applicant is suitable for issuance of an on-premises beer and wine permit.
15. 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 holds 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), 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. . . .

(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 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).
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); 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).
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 located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
5. Proximity of a location to a church may be a factor in examining a permit request. Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
6. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. South Carolina Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, this tribunal is likewise authorized to place restrictions or conditions on the permit. Id.
7. An important factor in considering the suitability of a location 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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). There is no evidence that the location is less suitable for the issuance of a permit now than previously.
8. The applicant meets the statutory requirements for the issuance of an on-premises 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 Diana L. Simpkins, d/b/a Pit Stop Pub, for an on-premises beer and wine permit for a business located at 2868 Bamberg Road, Orangeburg, South Carolina is

GRANTED, subject to the following restrictions:

1. The location shall not install any speakers outside the building;

2. The doors to the location shall remain closed while music is played; and,

3. The Petitioner shall engage security to patrol regularly the parking areas outside the location to ensure that persons do not loiter or create any disturbances.

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