SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997) and S.C. Code Ann. § 61-2-260 (Supp. 1997) upon the protested renewal of on-premises beer and wine permit (BW 727791) for an establishment known as the "49er Disco Diner," located at 2200 Lyttleton Street, Camden, South Carolina. Permittee requested a contested case hearing upon the filing of a written protest by the Camden Police Department to the renewal of his permit on the ground that the licensed location is unsuitable. The South Carolina Department of Revenue (hereinafter referred to as "DOR"), which also opposes the renewal of the permit, transmitted the case to the Administrative Law Judge Division for a hearing, which was held on May 21, 1998. Upon review of the relevant and probative evidence and applicable law, the permit renewal is denied.

By a preponderance of the evidence, I find:

1. Permittee Herbert Davis seeks renewal of an on-premises beer and wine permit for an establishment known as the "49er Disco Diner," located at 2200 Lyttleton Street, Camden, South Carolina, having filed a renewal application (AI# 0001531) with DOR for Permit BW 7277791.
2. The renewal application is opposed by DOR and the Camden Police Department.
3. Notice of the time, date, place, and subject matter of the hearing was given to all parties and protestants.
4. Petitioner first applied for an on-premises beer and wine permit for the proposed location in 1978, which was granted without protest or hearing.
5. Petitioner has operated the proposed location continuously since issuance of the beer and wine permit in 1978.
6. The proposed location is in a residential area of the City of Camden in close proximity to railroad tracks.
7. While operated by the permittee, the proposed location and immediate vicinity of the proposed location have been the site of criminal activity, including: drug possession, sales, and use; possession and discharge of firearms; pointing and presenting firearms; physical violence; under-age drinking, public consumption and intoxication; and loitering.
8. Crowds of people have congregated at the proposed location and in the area surrounding the proposed location during the night hours.
9. On numerous occasions since the issuance of the beer and wine permit to Petitioner, patrons have gathered in the parking area, sidewalk, and roadway in front of the licensed location, drinking and creating excessive noise.
10. The licensed location is the source of more complaints and police attention than any other place in the City of Camden.
11. Since 1994, there have been approximately 300 to 400 incidents at the licensed location which have required the attention of the Camden Police Department.
12. Camden Police Department officers have answered numerous calls and made arrests at or near the proposed location during the past four years, involving a variety of criminal charges.
13. Petitioner has attempted to control his patrons and has called the Camden Police Department himself on several occasions for assistance.
14. Petitioner uses a hand held metal detector at the club's entrance to prevent patrons from bringing firearms into the club.
15. Despite his best efforts, Petitioner is unable to adequately control the activities on the licensed premises.
16. Despite their best efforts, the officers of the Camden Police Department are unable to adequately control the activities on the licensed premises.
17. The availability of beer and wine for consumption in the immediate vicinity of the proposed location is one of the contributing causes of the public safety problems in the area.
18. Because of limited resources, the Camden Police Department is unable to adequately control criminal activity at and near the proposed location.
19. The applicant is over twenty-one years of age, is a resident of the United States and of the State of South Carolina, and has maintained his principal place of abode in South Carolina for more than thirty (30) days.
20. Petitioner has not had a permit revoked in the last two years.
21. Petitioner has not been cited for any ABC violations while licensed.
22. The disruptive activities which routinely occur on and near the licensed premises are a direct result of the sale and consumption of beer and wine and the business practices of Petitioner.
23. Because Petitioner is unable to control patrons on and near the licensed premises, the proposed location is unsuitable to hold an on-premises beer and wine permit.

CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
2. S.C. Code Ann. § 61-4-520 (Supp. 1997) provides the criteria to be met before issuance or renewal of a beer and wine permit.
3. A permittee must not permit any act to be committed on the licensed premises which tends to create a public nuisance or which constitutes a crime under the laws of this State. S.C. Code Ann. § 61-4-580 (Supp. 1997).
4. "Licensed premises shall include those areas normally used by the permittee or licensee to conduct his business and shall include but are not limited to the following: selling areas,

storage areas, food preparation areas and parking areas." 23 S.C. Code Ann. Regs. 7-81 (Supp. 1997).

1. 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 Commission, 281 S.C. 566, 316 S.E.2d 705 (S.C. App. 1984).
2. Constant problems which require police attention and create an adverse impact upon the community are grounds to deny a beer and wine permit. Palmer v. S.C. A.B.C. Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3. Noise and inconvenience to nearby residents may be a factor in denying a permit. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
4. Operation of the licensed location has resulted in an adverse impact upon the surrounding community. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
5. The proposed business activity is not proper for the proposed location considering the impact of the sale and consumption of beer and operation of a night club at the location upon criminal activity and law enforcement problems in the area. Palmer v. S.C. ABC Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct.App. 1984).
6. The proposed business activity is not proper for the proposed location considering the impact of the operation of a nightclub and the sale and consumption of beer upon criminal activity and the limited resources of law enforcement in the area.
7. Because of the noise, constant problems which require police attention, and adverse impact created by the business practices of the Petitioner, the proposed location is not suitable for the continued sale of beer and wine. Accordingly, the renewal of the current permit must be denied.

IT IS THEREFORE ORDERED that the renewal of on-premises beer and wine permit, BW #727791, is denied.

IT IS FURTHER ORDERED that the terms of this Order are effective July 1, 1998.

AND IT IS SO ORDERED.

_______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

June 16, 1998

Columbia, South Carolina