SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the application of George V. Baker, d/b/a Uncle Willie Social Club, for an on-premises beer and wine permit for a business located at 1010 W. 5th North Street, Summerville, South Carolina. After notice to the parties, a hearing was conducted on September 23, 1998. Because the Department of Revenue (DOR) would have issued the permit but for the issue of the suitability of the location, it was excused from the contested case hearing.

Based upon the evidence presented, the application for the beer and wine permit must be denied. 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:

1. The Petitioner, George V. Baker, applied for an on-premises beer and wine permit (AI#111722) for the premises located at 1010 West 5th Street North, Summerville, South Carolina.
2. The Dorchester County Sheriff (DCSO) protested the application on the basis of unsuitability of location.
3. The Department of Revenue was excused from the contested case hearing as, but for the protest filed, it would have issued the permit.
4. All parties and protesters were properly notified of the hearing of this matter.
5. Notice of application appeared in The Summerville Journal Scene on January 30 and February 6 and 13, 1998.
6. A sign giving notice of the application was posted at the location for fifteen days.
7. The Petitioner is over the age of twenty-one.
8. The Petitioner is a citizen and legal resident of the United States. He has been a legal resident of South Carolina for more than thirty one years.
9. The Petitioner has had no criminal convictions in the past ten years and is a person of good moral character.
10. The Petitioner is a suitable and fit person to hold a beer and wine permit.
11. The nearest church to the subject location is located approximately 0.3 miles from the proposed location.
12. There are no schools or playgrounds in the area.
13. The nearest residence is located 200 feet from the proposed location.
14. The location will operate as a bar, serving beer and wine. No food will be served.
15. Proposed entertainment at the location includes dancing with recorded music.
16. The location features lighting outside the building and a closed-circuit monitoring system.
17. The location will be open from 9:00 p.m. to 3:00 a.m., Thursday and Friday evenings, and from 9:00 p.m. to 2:00 a.m., Saturday evenings.
18. The Uncle Willie Social Club is located in an unincorporated area of Dorchester County near the city limits of Summerville.
19. The area surrounding the location is primarily rural in nature, with several businesses located nearby.
20. The Petitioner will lease the property from William R. Thomas, the former operator of the Uncle Willie Social Club.
21. The location has been licensed for sales of beer and wine, starting in 1959.
22. On December 20, 1996, while operated by William R. Thomas, the DCSO closed the location because it was operated without a county business license.
23. On January 9, 1998, while the location was operated by William R. Thomas, the DCSO inspected the location for compliance with the state ABC laws. Drug paraphernalia, crack cocaine and marijuana was discovered inside the location, and a stolen 9 mm handgun was discovered outside the location. Thomas was unable to produce a copy of an on-premises beer and wine permit, and DCSO officers seized beer at the location.
24. The location has a chronic history of law enforcement problems, including possession and distribution of crack cocaine and marijuana, larceny, loitering, public disorderly conduct, civil disturbances and firearms violations.
25. The DCSO has responded to numerous calls to the location.
26. The character of the business would remain the same and would continue to present a challenge for law enforcement.
27. Granting the beer and wine permit would produce an undue strain on DCSO's resources.
28. The issuance of the on-premises beer and wine permit would have an adverse impact on the community.

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. (1986 & Supp. 1997) and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1997).

This tribunal has personal jurisdiction over the parties.

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).

The standard of proof in a contested case hearing is a preponderance of the evidence. National Health Corp. v. South Carolina Dep't of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

As the party asserting the affirmative of an issue, the Petitioner bears the burden to prove he is entitled to a beer and wine permit. 29 Am. Jur. 2d Evidence § 127 (1994); Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:3 (1994).

"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).

The Petitioner has complied with the requirements of S.C. Code Ann. § 61-4-520(1-5) (Supp. 1997), which sets forth general requirements for the issuance of beer and wine permits.

The trier of fact may decide the 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); cf. S.C. Code Ann. § 61-4-520(6-7) (Supp. 1997).

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. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

The finder of facts may properly consider any evidence that shows adverse circumstances of location. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); cf. S.C. Code Ann. § 61-4-520(6-7) (Supp. 1997).

In considering suitability of location, it is relevant to consider the history of the location and to determine whether the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Id.

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).

As previous congregations of people at the location frequently have been attended by consumption of alcohol and disorder, the granting of a beer and wine permit will worsen the situation, and, therefore, the permit should be denied. See Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Where crime is a factor in a community, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); cf. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (fact finder may consider history of law enforcement problems in the area).

As the evidence clearly establishes that this business has been the location of numerous criminal disturbances in the recent past, thereby requiring police attention, the permit should be denied. See Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

The proposed location is unsuitable for issuance of the permit sought because of the past history of the proposed location and the likelihood that the proposed location would attract illegal drug activity and civil disturbances if the establishment were reopened with a beer and wine permit, regardless of the good intentions of the Petitioner. Consequently, the application does not meet all the requirements of S.C. Code Ann. § 61-4-520 and must be denied.

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

ORDERED, that the application of George V. Baker for an on-premises beer and wine permit (AI#111722) for Uncle Willie Social Club, 1010 West 5th Street North, Summerville, South Carolina, be denied.

AND IT IS SO ORDERED.

__________________________________

ALISON RENEE LEE

Administrative Law Judge

October 19, 1998

Columbia, South Carolina