SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1997) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. The Petitioner, Erich Simpson, seeks an on-premise beer and wine permit and sale and consumption license for The Black Lion Sports Grill. The Respondent made a Motion to be Excused which was granted by my Order dated March 5, 1998. Afterwards, Protestant East Side Crime Watch made a Motion to Intervene which was granted on April 14, 1998. A hearing was held on April 20, 1998 in the Administrative Law Judge Division.

The Permit requested by the Petitioner is denied.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestant, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.

2. The Petitioner seeks an on-premise beer and wine permit and a sale and consumption (minibottle) license for The Black Lion Sports Grill at 601 East Gay Street, Lancaster, South Carolina.

3. The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1997) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The East Side Crime Watch objects to the issuance of a permit and license to the Petitioner for the following reasons:

a) That the area in which this establishment is located has several businesses that have on-premises beer and wine licenses, and therefore the citizens who want to purchase alcohol in the area are more than adequately served (S.C. Code Section 61-6-170);

b) That the Petitioner is not of good repute in the community, and is not a suitable person to be so licensed (S.C. Code Sections 61-6-110 and 61-6-910);

c) That the area in which the establishment is located is a high crime area in the community; and

d) That the area in which the establishment is located is zoned for residential use, and therefore is not a suitable place to receive a liquor license (S.C. Code Section 61-6-910).

5. The Petitioner's proposed location was permitted for the sale of beer and wine since 1952. However, the location has never been licensed for the sale of liquor.

6. The proposed location is in a predominately residential area of the City of Lancaster. However, there are several businesses in the vicinity of this proposed location. In fact, the Petitioner holds an off-premise beer and wine permit for the "Quick Stop" which is located directly behind the proposed location.

7. The Petitioner contends that since opening the location in approximately September 1997, his business has not presented law enforcement problems to the community. In fact, during the last 40 months there has been only one incident of violent crime at the location. However, the location has been open only on a limited basis by the Petitioner. Additionally, the location was closed off and on during the last year and one half of its operation by the previous permit holder. Furthermore, though the proposed location is in a high crime area of the City of Lancaster, there are currently considerable efforts being made to redevelop this area into a family community setting. Both the City police of Lancaster and the East Side Crime Watch are working to reduce the crime in this area of Lancaster. The Lancaster police have spent many man-hours in this area attempting to reduce the criminal activity. Through the efforts of the police and citizens the current criminal activity is mostly confined in the 400 and 500 blocks of East Gay Street. Nevertheless, in the past when this location was operating full time, the criminal activity of the 400 and 500 blocks expanded to the 600 block at the proposed location.

I find that the criminal activity in the area of this proposed location poses a danger to the community. Specifically, from January 1, 1998 to March 30, 1998 the Lancaster Police have filed incident reports for criminal activity in the 400 block:

a) 43 for distribution of crack cocaine

b) 15 for possession with intent to distribute crack cocaine

c) 7 for possession of crack cocaine

d) 5 for trafficking in cocaine

e) 3 for distribution of marijuana

f) 5 for possession with intent to distribute marijuana

g) 14 for possession of marijuana

Furthermore, that criminal activity, combined with the availability of alcohol and drugs, makes the Respondent's location even more dangerous. Granting the Petitioner's permit and license creates a potential of a "public nuisance" for the surrounding residents and Lancaster Police Department.

8. The "Quick Stop" that the Petitioner co-owns and for which he holds a beer and wine permit, sells drug paraphernalia to enable individuals to smoke "crack" cocaine.

9. The proposed location is unsuitable for a sale and consumption license because of its proximity to the nearby residences, the burden upon law enforcement and the resulting negative impact that would occur upon the local community. Furthermore, I find that the improvements that have occurred in the area of the proposed location would be thwarted by granting this Petitioner a beer and wine permit.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1997) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1997) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance of an on-premise beer and wine permit.

4. In addition to the requirements set forth above, a license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 1997) are met. That section requires that a mini-bottle license be granted only to a bonafide business engaged either in the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, the principals and applicant must not only be of good moral character, but also the business must have a reputation for peace and good order.

5. S.C. Code Ann. § 44-53-391 (a) provides that "[i]t shall be unlawful for any person to advertise for sale, manufacture, possess, sell or deliver, or to possess with the intent to deliver, or sell paraphernalia." (Emphasis added.)

6. S.C. Code Ann. § 61-4-580 (Supp. 1997) provides 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:

* * *

(5) permit any act, the commission of which tends to create a public nuisance . . . .

7. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

8. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

9. A permit should be granted to a location that has been recently permitted absent some showing that the location is now less suitable than in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). However, in determining the suitability of a location, it is proper for this Court to consider any evidence that shows adverse circumstances of the 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). Furthermore, "[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).

This Court is well aware that this location has been permitted for the sale of beer and wine for many years. Nonetheless, that fact alone does not entitle the Petitioner to receive a permit. A beer and wine permit is neither a contract nor a property right. It is, rather, a privilege granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). Moreover, a permit may be properly denied where a disorderly situation would be worsened by making beer, wine or alcohol immediately available. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

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

ORDERED that the on-premise beer and wine permit and sale and consumption license application of Erich Simpson for The Black Lion Sports Grill be denied.

AND IT IS SO ORDERED.

______________________________________

Ralph King Anderson, III

Administrative Law Judge

May 18, 1998

Columbia, South Carolina