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 renewal of an on-premises beer and wine permit, filed with the South Carolina Department of Revenue ("DOR") by
Petitioner for a location at 10961 Two Notch Road, Elgin, South Carolina, in Richland County.
Written protests were filed and the matter was transmitted to the Administrative Law Judge Division
("ALJD") for hearing. A contested case hearing was held on January 5, 1999. Upon review of the
probative evidence and applicable law, the permit renewal is granted, but with special restrictions
imposed.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
Petitioner Larry W. Nelson is the holder of an on-premises beer and wine permit
(Permit BW #842136, AI #10135) for Wateree Dam Sports Shop, Inc., d/b/a Larry's Place, located
at 10961 Two Notch Road, Elgin, South Carolina, in Richland County, having first been issued a
permit by DOR in 1994, and having it renewed without protest in 1996.
Nelson filed for renewal of the permit on July 16, 1998, prior to the permit renewal
due date of July 31, 1998.
Written protests to renewal of the permit were filed by Henry Lord, Jr. and Cecil and
Vickie Redmon.
But for the protest filed, DOR would have issued the permit and license sought.
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 parties and protestants.
Without objection, the DOR file was incorporated into the record of the hearing.
Larry Nelson testified in support of the permit renewal; Cecil Redmon and Darlene Kinard testified
in opposition to the permit.
The proposed location operates as a community bar.
The proposed location is located on Two Notch Road, a/k/a U.S. Highway #1, in
unincorporated Richland County, approximately three miles from Elgin and three miles from
Pontiac.
Two Notch Road, a/k/a U.S. Highway #1 is a highly traveled route connecting
Columbia and Camden.
The proposed location is situated in a mixed commercial and residential area
experiencing increasing growth and development.
No school, church, or playground is located within close proximity to the proposed
location.
Approximately twenty-five residences are located within 1,000 feet of the subject
location.
Protestants Cecil and Vickie Redmon live next door to the proposed location, with
their home situated approximately 60 to 80 feet away.
Nelson is the owner and operator of the business at the proposed location and has
owned the business for approximately four years.
The proposed location has been licensed for on-premises sale and consumption of
beer and wine under Nelson, and previous permittees Bob Finch and Frank Dial for over fourteen
years.
Neither Nelson nor any previous permittee at the proposed location has ever been
cited for an ABC violation at the location.
While operated by Frank Dial, the location was a general store with a peaceful
reputation.
When Bob Finch commenced operation of the location as a bar, neighbors first began
to be disturbed by patrons' activities on the business premises, and those concerns have remained
during Nelson's operation.
Over the past few years, patrons of the proposed location have disturbed nearby
residents.
Patrons consistently congregate in front of the proposed location and in the parking
area.
The proposed location has a capacity of approximately 47 persons.
The proposed location is open from 10:00 a.m. until midnight or 2:00 a.m.
Patrons commonly loiter outside of the businesses, consuming beer and wine,
creating excessive noise, using profane and abusive language, fighting, urinating, littering, as well
as trespassing and causing property damage upon adjacent properties.
Numerous calls have been made by nearby residents to the Richland County Sheriff's
Department to complain about patrons' behavior and excessive noise at the location.
No arrests have been made by law enforcement officers at the proposed location
during Nelson's management.
Response time to the proposed location for officers of the Richland County Sheriff's
Department is approximately 40 to 45 minutes.
Cecil Redmon has made repeated complaints to the bar's employees about the
disturbances, but little improvement has resulted.
A wooden privacy fence divides the proposed location from the Redmon residence,
but noise and profanity disturbances by patrons outside of the bar continue to bother the Redmons.
Nelson has periodically operated an outdoor turkey shoot at the proposed location.
The noise created by the turkey shoot, especially during the late evening hours,
disturbed nearby residents.
To allow and encourage the use and discharge of firearms with live ammunition at
a location in a residential area which has on-premises beer and wine sales and consumption creates
a dangerous and potentially lethal situation with an adverse impact upon the community.
The vast majority of protestants' complaints about the proposed location are related
to the outdoor activities of the bar's patrons.
Given the proposed proximity to residences, the proposed location is better suited
for off-premises consumption than for on-premises consumption. With the location's indoor
seating capacity and privacy fence, however, on-premises consumption can be accomplished with
certain safeguards implemented to protect the privacy and safety of nearby residents.
Petitioner consents to being subject to a permit condition prohibiting the
consumption of beer and wine on the outside of his business premises.
To allow the proposed location 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. On-premises consumption of beer or wine is limited to the
indoor portion of the licensed location. Consumption
of beer or wine, the possession of an open container of beer
or wine, or loitering on any portion of the outdoor area of the
licensed location is prohibited. The permittee shall post
a conspicuous sign on the premises stating that prohibition.
2. The use and/or discharge of any type of firearm for any
purpose, including turkey shoots, is prohibited on the licensed
premises.
3. Any violation of a restriction of this permit is grounds for
revocation or suspension of the permit.
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 is a person of good moral character.
Petitioner is a suitable person to hold 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 holds subject matter jurisdiction in
contested cases concerning the issuance of beer and wine 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).
S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance
of a beer and wine permit.
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 many years, patrons' drinking, making loud noises, and urinating outside the bar
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 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.
Petitioner meets the requisite personal criteria to hold 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 on-premises beer and wine permit is hereby
renewed, subject to the following restrictions:
1. On-premises consumption of beer or wine is limited to the indoor portion of the of the licensed location. Consumption of beer
or wine, or the possession of an open container of beer or wine, on
any portion of the outdoor area of the licensed location is prohibited.
The permittee shall post a conspicuous sign on the premises stating
that prohibition.
2. The use and/or discharge of a firearm for any purpose,
including turkey shoots, is prohibited on the licensed premises.
3. Any violation of a restriction of this permit is grounds for
revocation or suspension of the permit.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
January 12, 1999
Columbia, South Carolina |