ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§61-2-90 (Supp. 1996) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested
case hearing. The Petitioner, Johnel Mosely, seeks an on-premise beer and wine permit for Player
Lounge. A hearing was held on June 9, 1998, at the Administrative Law Judge Division.
FINDINGS OF FACT
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 for the Player Lounge at 750
Jordan Street, Orangeburg, South Carolina.
3. The qualifications set forth in S. C. Code Ann. §61-4-520 (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 Petitioner has no criminal record and is of sufficient moral character to receive a
beer and wine permit.
5. After the Department reviewed the Petitioner's application, the Department denied the
Petitioner a permit. The permit application of Johnny Jackson for an on-premise beer and wine permit
at this location was previously denied by the ABC Commission. The Department contends that there
has been no material change in this area to warrant the granting of a permit. However, contrary to the
Department's assertions, there has been no previous determination by the ABC Commission that the
location was unsuitable. Rather, the Commission simply denied the permit without comment.
6. Lieutenant Mack appeared on behalf of the Orangeburg Sheriff's Office to protest this
permit. He contends that the proposed location is unsuitable because the proposed location is situated
in a residential neighborhood and the previous business that held a beer and wine permit at this location
was a burden upon law enforcement. The proposed location is in a residential low income area of
Orangeburg. Numerous elderly people live in the area. It was previously a dangerous area for law
enforcement officers. The area was so dangerous that when answering a call to this area the Orangeburg
Sheriff's Office had to respond with several officers. However, the area has improved dramatically.
This change resulted after the previous bar at this location was shut down. Since that time the name
of this area has been changed from Stone Alley to Gardenia to further facilitate an improvement in the
area.
The Petitioner agrees that this area has dramatically improved. There is far less drug-related
activity in this area and people are free once again to walk the streets. The Petitioner, however, contends
that his bar is needed in this area. He submits that if granted a permit, he and his brother will insure
that even if trouble makers return to his establishment that there will be no law enforcement problems.
His goal is to make the community better and he, in fact, intends to use part of the money he makes
from the proposed location for community sports. He further acknowledges that there is a substantial
elderly population in the area but contends that they need a bar in the area.
7. Although the criminal activity in the area of the proposed location has substantially
improved, it still has the potential of resuming. For example, when SLED Agent Dowling was
investigating this proposed location, he had to take a butcher knife from a woman to keep her from
stabbing someone else. Furthermore, there are still law enforcement problems with drugs in the area
of this location. While the Petitioner's intentions may be pure, I do not believe that the elderly
population of this area has expressed a need for a bar. To the contrary, I find that if a beer and wine
permit were granted for the proposed location there would be an extensive burden upon law
enforcement and a negative impact upon the advances that have been made in this community's
improvement. Accordingly, I find that the proposed location is unsuitable for 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. 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, wine or alcohol
using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984).
5. Although "proper location" is not statutorily defined, the Administrative Law Judge
Division is vested, as the trier of fact, with the authority to determine the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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).
In determining the suitability of a location, it is proper for this Court 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). 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).
6. 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).
7. "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).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit application of Johnel Moseley for Player
Lounge be denied.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
August 13, 1998
Columbia, South Carolina |
