ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C.
Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997) upon the application for an on-premises beer
and wine permit and a retail liquor license filed with the South Carolina Department of Revenue
("DOR") by Petitioner for a location at 743-A & 743-B Hazelwood Road, Columbia, South
Carolina. Written protests were filed, and the matter was transmitted to the Administrative Law
Judge Division ("ALJD"). A contested case hearing was held on September 3, 1998. Upon review
of the probative evidence and applicable law, the permit is granted, with restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
Petitioner Paul M. Myers is the applicant for an on-premises beer and wine permit
and a retail liquor license for a location at 743-A & 743-B Hazelwood Road, Columbia, South
Carolina, having filed an application with DOR, AI #121146 and AI #121147.
Written protests were filed with DOR in opposition to the issaunce of the beer and
wine permit on the basis that the proposed location is a nuisance to the neighborhood, and Petitioner
requested a contested case hearing.
The matter was transmitted to the ALJD, and timely notice of the time, date, place,
and subject matter of the hearing was given to the applicant, protestants, and DOR.
But for the protest filed, DOR would have issued the permit and license sought.
Upon motion granted, DOR was excused from participation in the contested case hearing.
Without objection, the DOR file was incorporated into the record of the hearing.
The proposed location operates as a party shop and retail liquor store.
Myers is the owner and operator of the businesses at the proposed location and has
owned the location for approximately twenty years.
The proposed location has been licensed for on-premises consumption of beer and
wine and for retail liquor sales under various licensees since the 1970's.
The party shop and retail liquor store are currently licensed in the name of Paul
Catoe.
The proposed location is located on Hazelwood Road, approximately one block from
the intersection of Garner's Ferry Road and Hazelwood Road, in an unincorporated part of Richland
County, South Carolina.
The proposed location is situated in a mixed commercial and residential area.
No school, church, or playground is located within 500 feet of the proposed location.
A small wooded area is situated adjacent to the subject location.
A residential subdivision is located in close proximity to the proposed location, with
the closest residence 413 feet away.
A private club with a beer and wine permit is located across Hazelwood Road from
the proposed location.
Patrons of the private club across the street from the proposed location stay inside
of the club and do not create a nuisance.
The party shop has seating for approximately 30 customers.
The party shop is open from 9:00 a.m. until 10:00 p.m.
The retail liquor store is open from 9:00 a.m. until 7:00 p.m.
The location has an unpaved parking lot in front of the business.
Patrons consistently congregate in front of the proposed location, on the street and
in the parking area.
Over the past ten years, patrons of the party shop have disturbed the neighborhood.
Patrons commonly loiter outside of the businesses, consuming beer and wine,
creating excessive noise, and creating traffic hazards and distractions.
On occasion, patrons have lit fires in metal drums located behind the building and
urinated in public.
The party shop has contributed to increased traffic in the area, especially in the
evening hours.
Petitioner has begun construction on a wooden privacy fence, to create an outdoor
area on the premises which is not visible from the street for patrons to congregate and consume beer
and wine.
Upon completion of the privacy fence, Petitioner intends to encourage patrons
wishing to drink and/or gather outside to congregate behind the fence, out of view of passers-by and
neighboring residents.
Given the proposed location's character as a "party shop," rather than a bar or tavern,
it is better suited for off-premises consumption than for on-premises consumption. With the party
shop's indoor seating capacity and proposed privacy fence, however, on-premises consumption can
be accomplished with minimal safeguards.
To allow the party shop to serve patrons beer and wine for on-premises consumption
but protect neighbors and passers-by from being unreasonably disturbed by patrons' activities in
front of the location, the following restrictions must be incorporated into the beer and wine permit:
1. Petitioner shall complete construction of a privacy fence on the
licensed premises, which extends at least thirty feet in length and is
adequate to shield patrons from public view while consuming beer
or wine outdoors on the licensed premises.
2. On-premises consumption of beer or wine is limited to the indoor
portion of the party shop and only to the outdoor area of the
licensed premises which is located behind the privacy fence and
hidden from public view from Hazelwood Road.
3. On-premises consumption of beer or wine in front of the building
or between the privacy fence and Hazelwood Road is prohibited.
The location is suitable for the issuance of a retail liquor license without additional
restrictions.
Notice of the application for the beer and wine permit and retail liquor license was
published in The Columbia Star on April 23, April 30, and May 7, 1998, and notice was posted at
the proposed location.
Petitioner is over the age of twenty-one.
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.
Petitioner has had no criminal convictions in the past ten years and is a person of
good moral character and good repute.
Petitioner is a suitable person to hold an on-premises beer and wine permit.
Petitioner is a suitable person to hold a retail liquor license.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
The Administrative Law Judge Division holds subject matter jurisdiction in
contested cases concerning the issuance of beer and wine permits and retail liquor permits, pursuant
to S.C. Code Ann. § 61-2-260 (Supp. 1997); §§ 1-23-310 et seq. (1986 & Supp. 1997); and §§ 12-60-10 et seq. (Supp. 1997).
Issuance of a retail liquor license pursuant to S.C. Code Ann. § 61-6-100 (Supp.
1997) is subject to Petitioner's meeting the qualifications set forth in S.C. Code Ann. § 61-6-110
(Supp. 1997) and the proposed location's meeting the requirements of S.C. Code Ann. § 61-6-120
(Supp. 1997).
S.C. Code Ann. § 61-6-910 (Supp. 1997) provides the criteria for the issuance of
retail liquor licenses in South Carolina.
Petitioner meets the requisite criteria to hold a retail liquor license.
S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance
of a beer and wine permit.
Petitioner meets the requisite criteria to hold an on-premises beer and wine permit.
Proper notice of the application for the license sought was made, pursuant to S.C.
Code Ann. § 61-6-180 (Supp. 1997).
Under S.C. Code Ann. § 61-6-120 (Supp. 1997), a retail liquor store in an
unincorporated area must be at least three hundred feet from any church, school, or playground
unless the location has been previously licensed. No schools, churches, or playgrounds are within
the prescribed proximity to render the proposed location unsuitable under S.C. Code Ann. § 61-6-120 (Supp. 1997).
The factual determination of whether or not an application should be 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).
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).
Although the proposed location has been licensed for on-premises beer and wine
consumption for approximately twenty years, patrons' drinking, making loud noises, and urinating
outside the store have adversely affected the surrounding residential neighborhood. If on-premises
sales are to be allowed to continue, restrictions on the beer and wine permit to reduce the
disturbances to neighboring residents are warranted.
Permits and licenses issued by the State for the sale of liquor, beer, and wine are not
rights or property, but are rather privileges granted in the exercise of the police power of the State
to be used and enjoyed only so long as the restrictions and conditions governing them are complied
with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to
revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or
license. See Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
23 S.C. Code Ann. Regs. 7-88 (1976) provides for the inclusion of stipulations to
a beer and wine permit, with the stipulations incorporated into the basic requirements for the
enjoyment and privilege of obtaining and retaining the beer and wine permit and having the same
effect as any and all laws and any and all other regulations pertaining to the effective administration
of beer and wine permittees. Violation of a permit restriction may be grounds for revocation of the
permit.
The location is suitable for issuance of a retail liquor license.
The location is suitable for issuance of an on-premises beer and wine permit, subject
to certain restrictions to address its existing adverse impact upon the surrounding neighborhood.
The restrictions set forth below are reasonable and necessary to protect the
surrounding neighborhood from disturbances.
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 license and permit are granted, subject to the
following restrictions:
1. Petitioner shall complete construction of a privacy fence on the
licensed premises, which extends at least thirty feet in length
and is adequate to shield patrons from public view while
consuming beer or wine outdoors on the licensed premises.
2. On-premises consumption of beer or wine is limited to the indoor
portion of the party shop and only to the outdoor area of the
licensed premises which is located behind the privacy fence and
hidden from public view from Hazelwood Road.
3. On-premises consumption of beer or wine in front of the building
or between the privacy fence and Hazelwood Road is prohibited.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 2, 1998
Columbia, South Carolina |
