SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the application of James L. Thompson, d/b/a LaRuge International II, for an on-premises beer and wine permit for a business located at 150-B South Dargan Street, Florence, South Carolina. After notice to the parties, a hearing was conducted on July 6, 1998.

Based upon the evidence presented, the application for the beer and wine permit is GRANTED. Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

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:

The Petitioner, James L. Thompson, applied for an on-premises beer and wine permit (AI #118276) on November 7, 1997, for the premises located at 150-B South Dargan Street, Florence, South Carolina.

The Petitioner is over the age of twenty-one.

The Petitioner has legally resided in the United States and has held a principal place of abode in South Carolina for more than thirty days prior to the date of application.

The Petitioner has had no criminal convictions in the past ten years and is a person of good moral character.

The proposed location is located within the city limits of Florence in a predominantly commercial area. Several businesses are located in the area immediately surrounding the proposed location, including a restaurant, a retail pharmacy, an antiques store, the Pee Dee Education Center, and two hair salons.

The proposed location adjoins a beauty salon owned by the Petitioner and will operate as a bar and lounge, open from 6:00 p.m. to 12:00 a.m., Monday through Saturday. The location has seating for forty patrons as well as a pool table and a jukebox. No live entertainment will be featured at the location. The location has adequate parking during business hours.

Lawrence and Gale Dixon protested the application on the basis of concerns about the proposed location's potential impact on their business. The Dixons operate a retail pharmacy nearby and feel the proposed location would be detrimental to their customers using their back entrance, mostly senior citizens. The Dixon's drug store's business hours are from 9:00 a.m. until 6:00 p.m., Monday through Friday, and from 9:00 a.m. until 1:00 p.m., Saturday.

The Pee Dee Education Center, which adjoins the proposed location, filed a written protest but did not make an appearance at the hearing. The center serves as a training institute for educators. The Pee Dee Education Center facility is used for training adults, such as teachers and secretaries, in the field of education. The center expressed concern over the availability of parking as well as concern that its clients would not feel comfortable attending training sessions at night.

The McLeod Regional Medical Center is located within a few blocks of the proposed location. It also owns vacant property adjacent to the proposed location, which is being considered for development by the Pee Dee Mental Health Center. The McLeod Regional Medical Center intends for the area to be developed into a professional community known as the "Medical Mile." Within this area are medical office facilities, the South Carolina Department of Health and Environmental Control, and other support facilities including a day care center for use by employees.

The testimony of those opposing the permit consisted of opinions, generalities, and conclusions that the proposed business would have an adverse impact upon the downtown business community.

Notice of application appeared in the Morning News on October 10, 17, and 24, 1997. Notice was also posted at the proposed location for the time period required.

But for the protest filed, the Department of Revenue would have issued the permit.

Since the major protest involves interference with patrons of the neighboring retail pharmacy, as a result of the close proximity of the proposed location to the pharmacy, the following restriction should be added to the permit: the location shall not open for business earlier than 6:00 p.m., Monday through Friday.

The applicant is suitable for issuance of an on-premises beer and wine permit.

The location, subject to the restriction, 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:

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. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (Rev. 1986 & Supp. 1997), and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1997).

"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. 1997).

S.C. Code Ann. § 61-4-520 (Supp. 1997), 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.

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).

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).

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).

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).

There has been no evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit would have an adverse impact on the community.

The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not support by facts. Taylor v. Lewis, supra; Smith v. Pratt, supra.

Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that the permit was protested does not serve as a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

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.; cf. 23 S.C. Code Ann. Regs. 7-88 (1976). To alleviate the concerns expressed by the protestors, the business should not open before 6:00 p.m.

The applicants meet the statutory requirements for the issuance of an on-premises beer and wine permit.

The location, subject to the restriction, 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 James L. Thompson, d/b/a LaRuge International II, for an on-premises beer and wine permit for a business located at 150-B South Dargan Street, Florence, South Carolina is granted, subject to the restriction that the location shall not open for business earlier than 6:00 p.m., Monday through Friday.

AND IT IS SO ORDERED.

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ALISON RENEE LEE

Administrative Law Judge

July 7, 1998

Columbia, South Carolina