ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-1310 and 12-60-1320
(Supp. 1997) upon the application of W. Kent Grant, The Yard at Oak Grove, Inc., d/b/a The Yard,
4510 Augusta Road in Lexington, for an on-premises beer and wine permit filed with the South
Carolina Department of Revenue ("DOR"). Protests were filed alleging the proposed location is
unsuitable. The matter was transmitted to the Administrative Law Judge Division, and a contested
case hearing was held on September 3, 1998. Upon review of the relevant and probative evidence
and applicable law, the permit is granted.
DISCUSSION
Protestants claim that the location is unsuitable for the sale of beer and wine because of its
close proximity to a day-care center and residences. A business at the same location, however, was
determined to be suitable for the issuance of an on-premises beer and wine permit in 1997. The
nature of the business activity to be carried on at the proposed location has not changed
significantly, in that The Yard will operate as a restaurant with batting cages. In fact, the current
operation will emphasize the restaurant side of the business more so than the previous business.
Further, the location has not created any law enforcement problems. Accordingly, given the past
history of the proposed business, improvements to the operation of the location, and the commercial
character of the area, the proposed location is suitable for an on-premises beer and wine permit.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
W. Kent Grant is the applicant for an on-premises beer and wine permit for a
location at 4510 Augusta Road, Lexington, South Carolina, having filed an application with DOR,
AI #120877.
The business at the proposed location is to be operated by The Yard at Oak Grove,
Inc. under the trade name "The Yard." Fred J. Goebeler serves as President of The Yard at Oak
Grove, Inc.
The proposed location is in an unincorporated part of Lexington County, South
Carolina, on Augusta Road, a busy, commercial thoroughfare.
The proposed location will operate primarily as a family-oriented restaurant that
features batting cages.
The current owners, corporate shareholders and officers of the Yard at Oak Grove,
Inc., seek to improve the image and operation of the business as compared to previous businesses
at the location.
Previously, the corporate shareholders owned The Yard as a limited partnership, with
Johnny D. Smith and his brother having exclusive management rights.
The previous permittee, Johnny D. Smith, will have no interest or control of the
operation of the proposed location.
The Smith permit expired during the summer of 1998.
The area surrounding the proposed location is a mixture of commercial and
residential properties.
The proposed location is approximately 147 feet from the Bright Ideas Day Care
Center.
Various businesses permitted to sell beer and wine have operated at the location from
1983 until 1997.
Judicial notice is taken of the following decisions of the Administrative Law Judge
Division concerning permit applications for businesses at the proposed location: Smith v. South
Carolina Dep't of Revenue, 97-ALJ-17-0133-CC (July 7, 1997); Smith v. South Carolina Dep't of
Revenue, 96-ALJ-17-0450-CC (February 26, 1997).
Judicial notice is also taken of the previous decisions of the Alcoholic Beverage
Control Commission concerning beer and wine permits at the location.
In Smith v. South Carolina Dep't of Revenue, 96-ALJ-17-0450-CC (February 26,
1997), Administrative Law Judge Alison R. Lee determined that the location was suitable for the
issuance of an on-premises beer and wine permit.
The Petitioner is over the age of twenty-one.
Notice of the application appeared at least once a week for three consecutive weeks
in The Dispatch-News and was posted at the location for fifteen days.
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's proximity to a day care center and to residences does not
render it unsuitable.
Permitting the proposed location will not significantly increase traffic in the area.
Operation of the proposed location has not resulted in any calls to the Lexington
County Sheriff's Department, nor have any incident reports been written for disturbances at the
location.
Permitting the proposed location will not strain law enforcement resources in the
area.
The testimony of those opposing the requested license or permit consists of opinions,
generalities, and conclusions not supported by facts.
But for the protest filed, the South Carolina Department of Revenue would have
issued the permit.
The applicant is suitable for the issuance of an on-premises beer and wine permit.
The location is suitable for the issuance of an on-premises beer and wine permit.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
The Administrative Law Judge Division has 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).
S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance
of a beer and wine permit.
Proper notice of the application for the permit sought was made, pursuant to S.C.
Code Ann. § 61-4-520 (Supp. 1997).
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).
The trier of fact must weigh and pass upon the credibility of evidence presented.
See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge who observes a witness is in the best position to judge the witness's
demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299
S.E.2d 322 (1982).
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 supported 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 applicant meets the statutory requirements for the issuance of an on-premises
beer and wine permit.
Given the past history of the location, the emphasis of a family-oriented restaurant
business at the location, the lack of law enforcement problems at the location while previously
licensed, and the commercial nature of Augusta Road, the location is suitable for issuance of an on-premises beer and wine permit.
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).
ORDER
IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue
the permit sought by Petitioner upon the payment of the required fees.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 8, 1998
Columbia, South Carolina |
