ORDERS:
ORDER AND DECISION
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997)
and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1997) for a hearing on Petitioner's
renewal application for an on-premises beer and wine permit for the Barksdale Lunch, a night club.
After timely notice to the parties, a hearing was held at the Administrative Law Judge
Division on March 13, 1998.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make
the following Findings of Fact by a preponderance of the evidence:
- Petitioner Curtis Thompson seeks renewal of an on-premises beer and wine permit
for the Barksdale Lunch, Inc., a night club located at 207 Worley Road, Greenville, South Carolina.
Petitioner has held an on-premises beer and wine permit at this location for approximately eighteen
years.
- The State Law Enforcement Division completed a criminal background investigation
of Petitioner which revealed no criminal convictions. Further, the record in this matter does not
indicate that Petitioner has engaged in acts or conduct which imply the absence of good moral
character.
- Petitioner is at least twenty-one years of age, a U.S. citizen, a citizen of the State of
South Carolina, and has maintained his principal residence in the State for at least thirty days prior
to the date of making application for the permit and license.
- Petitioner has not had a beer and wine permit or alcohol beverage license revoked
within two years of the date of his application.
- The night club is open from 6 p.m. to 3 a.m. on Monday, Wednesday, Friday, and
Saturday, and from 6 p.m. to 3:30 a.m. on Thursday. It has had a number of incidents and
disturbances involving fights and gunfire which spilled over into the surrounding residential
neighborhood. See Greenville County Sheriff Incident Listing by Location (attached to application).
The operation of the club also causes an inordinate amount of noise, litter and traffic congestion in
the neighborhood.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- S.C. Code Ann. § 61-2-260 (Supp. 1997) authorizes the South Carolina
Administrative Law Judge Division to hear this case.
- S.C. Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the issuance of
a beer and wine permit. Included among the factors for consideration is suitability of the location.
- Although "proper location" is not statutorily defined, broad discretion is vested in the
Administrative Law Judge Division, as the trier of fact, in determining the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
- 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. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984).
- The determination of suitability of a location is not necessarily a function solely of
geography. It involves 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); Schudel v. South Carolina ABC Comm'n, 276 S.C.
138, 276 S.E.2d 308 (1981).
- In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). See also Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
- "The proximity of a location to a church, school or residence is a proper ground by
itself, on which the [trier of fact] 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, 407 S.E.2d
653 (1991); Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
However, proximity is not a proper ground for denial of a license when as in the instant case, the
place of business was licensed prior to April 21, 1986. S.C. Code Ann. § 61-4-520(7) (Supp. 1997).
- "A liquor license or permit may properly be refused on the ground that the location
of the establishment would adversely affect the public interest, that the nature of the neighborhood
and of the premises is such that the establishment would be detrimental to the welfare . . . of the
inhabitants, or that the manner of conducting the establishment would not be conducive to the
general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).
- The proposed location is situated in the midst of a residential community. The
Greenville County Sheriff's Department responded to fifty-six calls involving problems at this
location between January 1, 1997 and January 13, 1998. Further, credible testimony clearly indicates
that the operation of the Petitioner's business "tends to create a public nuisance" for the surrounding
residents. See S.C. Code Ann. § 61-4-580(5) (Supp. 1997).
- Given the record of frequent criminal disturbances at this location, and the adverse
impact the operation of this establishment has had on the neighborhood, granting this permit would
be harmful to the general welfare of the community.
This tribunal is well aware that Petitioner has held a permit at location for approximately
eighteen years. Nonetheless, this fact alone does not entitle him to continued licensure. A beer and
wine permit is neither a contract nor a property right. It is a "mere permit, issued or granted in the
exercise of the police power of the state to do what otherwise would be unlawful to do; and to be
enjoyed so long as the restrictions and conditions governing their continuances are complied with."
Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
Moreover, the members of this community are entitled to be free from the kinds of criminal
activity, breach of peace, excess litter and traffic problems caused by Petitioner's business. "The
right of a person to use his own property does not entitle him to violate the peace and comfort of
others in the vicinity." 3 S.C. Juris Breach of Peace § 7 (1991). The Intervenor testified that the
community has experienced relief from the disturbances associated with Petitioner's business during
the short interim renewal period in which he has not been permitted to sell beer and wine. See
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (holding that permit properly denied where
disorderly situation would be worsened by making alcohol immediately available).
- As the trier of fact, the issuance or denial of a permit rests within the sound discretion
of this tribunal. Inherent in the power to issue a permit is also the power to refuse it. Terry v. Pratt,
258 S.C. 177, 187 S.E.2d 884 (1972). Refusal of licensure in the instant case is compelled because
renewing Petitioner's permit would be detrimental to the inhabitants of the properties surrounding
207 Worley Road.
ORDER
Based upon the Findings of Fact, Discussion, and Conclusions of Law, it is hereby:
ORDERED that the application for the renewal of an on-premises beer and wine permit for
the Barksdale Lunch located at 207 Worley Road, Greenville, South Carolina is denied.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 292211-1667
March 20, 1998
Columbia, South Carolina |
