SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (ADivision@) pursuant to S.C. Code Ann. § 61-2-80 (Supp. 1998) and S.C. Code Ann. § 1-23-600 (Supp. 1998) for a hearing pursuant to the application of Lillie K. Pulliam, d/b/a Old Timers (APetitioner@) for a sale and consumption (Aminibottle@) license at 1113 Beaverdam Road, Williamston, South Carolina.

The South Carolina Department of Revenue (ADepartment@) made a Motion to be Excused stating that but for the protest of this application, the Department would have issued the license. The Department's Motion was granted on May 27, 1999.

A hearing was held before the Administrative Law Judge Division in Spartanburg, South Carolina, on July 6, 1999. Notice of the time, date, place, and nature of the hearing was timely given to all parties, including the protestants.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place, and subject matter of the hearing was given to the parties.

2. The Division has personal and subject matter jurisdiction.

3. The Petitioner seeks a sale and consumption (minibottle) license for Old Timers at 1113 Beaverdam Road, Williamston, South Carolina.

4. The applicant meets all of the statutory requirements relating to the sale and consumption license set out in S.C. Code Ann. § 61-6-1820 (Supp. 1998).

5. No church, school, or playground is within close proximity to the proposed location. The nearest church is the Macedonia Baptist Church, and it is approximately 1300 feet away from the proposed location.

6. The applicant intends to operate the proposed location from 11:00 am - 10:00 pm, Monday through Saturday.

7. The proposed location has a jukebox and the applicant testified that there is karake at the location on Friday nights.

8. The applicant testified that the proposed location has had no incidents involving the police since the location opened for business in October, 1998.

9. The applicant testified that the family living next-door to Old Timers has complained repeatedly about the loud music coming from the establishment.

10. James L. Beddingfield, Joe Frank Whitlock, and Betty Davenport testified on the applicant's behalf. These witnesses live close to the proposed location and frequent the restaurant/bar often. These witnesses testified that they did not know of any incidents at Old Timers involving the local police.

11. Jerry Mitchell Davis and Reverend Jimmy H. Farmer testified as Protestants in this case. Mr. Davis is protesting the minibottle license because he believes this is a congested area and there will be an increase in alcohol-related car accidents in this area. Mr. Davis testified that there had been two alcohol-related accidents in the past. However, these accidents occurred before the proposed location was open for business.

12. Reverend Jimmy H. Farmer is protesting the minibottle license because he believes there will be more traffic congestion in the area and, also, he believes that alcohol consumption is morally wrong.

13. There were six (6) protestants present at the hearing who chose not to testify. They were all members of Macedonia Baptist Church or Beaverdam Baptist Church.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-4-525 (Supp. 1998) grants to the Administrative Law Judge Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-6-1820 (Supp. 1998) sets forth the requirements for the issuance of a sale and consumption license.

4. The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of a proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

5. Any evidence adverse to a location may be considered. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school or residence is a proper ground by itself on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina ABC Comm'n, 305 S. C. 243, 407 S. E. 2d 653 (1991). Further, the judge can consider whether there have been law enforcement problems in the general area. Palmer v. S. C. ABC Comm'n, 282 S. C. 246, 317 S. E. 2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence of other licensed locations in the immediate vicinity and the existence of students and small children in the area.

6. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

7. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the Protestants concerning a possible detriment to their community is conjectural and without any specific factual support. There is no evidence of law enforcement problems in the general area of the proposed location, nor is there evidence of increased traffic congestion or recent alcohol-related accidents in this area. All the general statutory requirements have been met.

The major complaints of the protestants are based on conjecture and conclusions which this court concludes are without basis. The court does not see any evidence that law enforcement could not provide sufficient protection at the location and to residents in the general vicinity; there is no evidence of any safety problems. If the business at this location is operated properly, there will be no negative impact upon the community.

8. Permits and licenses issued by the State for 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 Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

9. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an applicant meets the requisite qualifications and conditions, is a fit person and the proposed place of business is a proper one, absent sufficient evidence of an adverse impact on the community, the department must issue the permit after payment of the fees as required by law. The fact that a permit or license is protested is not 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).

10. Standards for judging the suitability of a proposed location for the sale of beer, wine or liquor are not determined by a local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, regulated by the State.

11. I conclude that the Petitioner has met her burden of proof in showing that she meets all of the statutory requirements for holding a sale and consumption license at the location. I further conclude that the proposed location is a proper one for granting the license, with improvements to the location and the stipulation as set forth below.

ORDER

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

ORDERED that the Department of Revenue shall issue a sale and consumption license to Lillie K. Pulliam, d/b/a Old Timers upon the payment of the appropriate fees.

IT IS FURTHER ORDERED that the license shall only be issued by the Department upon the applicant's completion of the following improvements to the property:

1) The applicant shall build a privacy fence on all sides of the property where residences are in close proximity to the location.

2) The applicant shall insulate the walls of the building.

IT IS FURTHER ORDERED that once these improvements are completed, the Department shall issue the license upon the applicant signing a written agreement to be filed with the Department to adhere to the following stipulation:

1) The applicant shall keep the noise level under control at all times.

IT IS FURTHER ORDERED that a violation of the above condition is considered a violation against the license and may result in a fine, suspension, or revocation.

AND IT IS SO ORDERED.

Marvin F. Kittrell

Chief Administrative Law Judge

July 21, 1999

Columbia, South Carolina.