ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) on the
application of Jeffery A. Spilka d/b/a 640 Harden Street, Inc. for an on-premises beer and wine permit and minibottle license
for a restaurant to be located at 640 Harden Street, Columbia, South Carolina. After notice to the parties, (1) a hearing was
conducted on October 21, 1999. Based upon the evidence presented regarding the suitability of the location, this tribunal
finds the nature of the area in which the restaurant is to be located suitable for a beer and wine permit and minibottle license.
Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).
STIPULATIONS
At the hearing of this matter, counsel stipulated in open court that the only issue before this tribunal was whether the location
was suitable for a beer and wine permit and minibottle license. Counsel for Petitioner further stipulated that his client does
not currently satisfy the statutory criteria concerning the conduct of a business engaged primarily and substantially in the
preparation and serving of meals. Counsel for Respondent stipulated that but for the protests, the Respondent would have
granted the beer and wine permit and minibottle license, upon Petitioner's satisfaction of the statutory criteria relative to the
service of meals.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into
account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On November 16, 1998, Petitioner, Jeffery A. Spilka, submitted an application for an on-premises beer and wine permit
and a bona fide restaurant minibottle license with the South Carolina Department of Revenue for the premises located at 640
Harden Street, Columbia, South Carolina.
2. Petitioner leases the proposed location from Beach Brooker.
3. Petitioner operated a restaurant known as Sharky's along with his wife for four years. Sharky's is located next door to the
proposed location and has a beer and wine permit and minibottle license. Sharky's has operated without being cited for a
violation.
4. Petitioner has no criminal convictions and is a person of good moral character.
5. Petitioner is a legal resident of the United States.
6. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before
applying for a permit and minibottle license.
7. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has never had any permit to
sell beer and wine or alcoholic liquors suspended or revoked.
8. Petitioner is over twenty-one years of age.
9. Notice of application for the beer and wine permit and minibottle license was published in The Columbia Star on
November 19, November 26 and December 3, 1998. Notice was also posted at the proposed location for the time-period
required.
10. E. Bruce DuBose, III of Sylvan & DuBose Jewelers and William L. Hampton, III of Hiller Hardware filed protests to
Petitioner's application on the grounds that the proposed location is unsuitable because of inadequate resources for police
protection, inadequate parking, and the high concentration of bars already near that location.
11. But for the protests, the Department would have issued the beer and wine permit and minibottle license, upon Petitioner's
satisfaction of all statutory criteria.
12. The proposed location is in a strictly commercial area with approximately twenty-seven businesses of a wide array in the
immediate vicinity.
13. There are no churches, schools, or playgrounds within close proximity to the proposed location. The nearest residence
is approximately one-tenth of a mile away.
14. According to Department records, none of the businesses holding alcohol licenses on Harden Street have been cited for
any related violations.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998),
S.C. Code Ann. § 1-23-600(B) (Supp. 1998) and S.C. Code Ann. § 1-23-310 (Supp. 1998).
2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or
official to whom the duty of issuing it is committed[.]" Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984).
3. S.C. Code Ann. § 61-6-1820 (Supp. 1998) establishes the criteria for the issuance of a minibottle license. Although the
suitability of the proposed location is not listed in this statute as a condition of licensing, such a consideration is proper.
Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
4. 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).
5. 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 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); Schudel v. South Carolina ABC Comm'n,
276 S.C. 138, 276 S.E.2d 308 (1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows
adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417
S.E.2d 555 (1992).
7. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may
find the location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555
(1992);Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
8. 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); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d
(Court. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Court. App. 1984).
9. I find the location to be suitable for the issuance of a beer and wine permit and a minibottle license due to the commercial
nature and array of businesses in the area in which it is to be situated. There is no evidence in the record from the Columbia
Police Department that it cannot provide adequate resources to the area if Petitioner's restaurant is granted the permit and
license. Further, since there are no apparent safety concerns regarding the availability of parking for the restaurant,
Protestants' concern regarding inadequate parking is merely a logistical matter to be addressed by the City of Columbia when
it determines whether to issue the retail license. Finally, although Protestants complain that there is a high concentration of
"bars" in the area, of the twenty-seven businesses in the vicinity, only four hold beer and wine permits and minibottle licenses
and two hold beer and wine permits, one of which is a convenience store. Although S.C. Code Ann. § 61-6-170 (Supp.
1998) allows the Department to deny licenses to retail dealers of liquor if the political subdivision is more than adequately
served by existing stores, this provision applies directly to "liquor stores" and is not binding in the issuance of beer and wine
permits and minibottle licenses. This tribunal has discretion to consider whether the area is adequately served as a factor in
determining suitability. The application of this factor does not preclude the issuance of the permit and license in the instant
case. The area of the proposed restaurant, Five Points, consists of several eateries, and the addition of another is consistent
with and suitable to its current character.
10. Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an
on-premises beer and wine permit. The Department shall continue to process Petitioner's application for a minibottle license.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Department shall issue to Petitioner an on-premises beer and wine permit for the aforementioned
location and shall continue to process Petitioner's application for a minibottle license.
AND IT IS SO ORDERED.
___________________________
JOHN D. GEATHERS
Administrative Law Judge
October 28, 1999
Columbia, South Carolina.
1. One of the protestants informed the Department that he never received notice of the hearing. It appears that notice of
the hearing was mailed to the parties before the Department filed its amended Agency Transmittal notifying this tribunal of
the identities of the protestants. Nevertheless, the Department stated that it apprised the protestants of the date and time of
the hearing. The protestants did not appear at the hearing, but their letters objecting to the issuance of the permit and license
were admitted into evidence and considered. |
