ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Code Ann. Regs. 7-90
(1976) upon the Petitioner's request for a contested case hearing. The Petitioner, James H. Ruth, d/b/a Ruth's Bar, seeks an
on-premises beer and wine permit. After the Protestant filed a written protest with the South Carolina Department of
Revenue ("DOR"), and upon the Petitioner's request, this matter was transmitted by DOR to the Administrative Law Judge
Division ("ALJD") for a hearing. A hearing was held on October 20, 1999 at the ALJD in Columbia, South Carolina.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find
the following by a preponderance of the evidence:
1. The Petitioner, James H. Ruth, d/b/a Ruth's Bar, seeks an on-premises beer and wine permit for his
establishment located at 109 Old Buffalo Road, Union, South Carolina, in Union County.
2. On August 25, 1999, DOR filed a Motion to Be Excused from appearance at and participation in the hearing.
In that motion, DOR noted that it does not oppose the Petitioner's application and would have granted the permit but for the
protest. The motion was granted by Order dated September 2, 1999.
3. The parties and the Protestant received notice of the time, date, place, and subject matter of this hearing.
4. The Protestant does not challenge the Petitioner's suitability to hold the permit; however, he does challenge
the suitability of the location.
5. The Petitioner intends to operate the proposed location as a sports bar with a pool table, a jukebox, and a
television tuned to various sports channels.
6. The area surrounding the location, although zoned commercial, is used primarily for residential purposes.
Seven families live within 100 yards of the proposed location. There is a residence across the street within 67 feet of the
location.
7. The property is bordered by a railroad track with a railroad switch at one end of the property.
8. The triangular-shaped lot on which the building is located has 212 feet bordering on Old Buffalo Road, with
approximately 100 feet of which is not usable.
9. Old Buffalo Road is narrow with neither sidewalks nor adequate space for parking.
10. The additional parking secured by the Petitioner would require patrons to cross the street.
11. Chief R. F. Roark of the Union Public Safety Department protested and called several witnesses to testify at
the hearing: (1) Lieutenant Jim Palmer of the Union Public Safety Department; (2) Mr. William Jeptha Gault, who lives near
the proposed location; and (3) Mr. William Oliver Beheler, who also lives near the proposed location.
12. The proposed location is not currently licensed, but it did hold an on-premises beer and wine permit until
approximately June of 1998. During that period, the former business had large crowds inside. The number of people often
exceeded the fire rating for the building. In addition, the lack of adequate parking created traffic problems. Nearby residents
complained of noise in the early morning hours, which was coming from cars around the former business.
13. Because of the inadequate parking, many patrons of the prior business parked on the sides of two narrow
streets, resulting in cars being ticketed and/or towed from the streets and nearby businesses. Further, as the patrons returned
to their cars, late-night conversations disturbed several residents.
14. Mr. William J. Gault lives on one of the narrow streets formerly used for parking. Patrons parked in his yard
and sometimes blocked his driveway. The headlights of some cars would shine through his windows. Mr. Gault had to clear
his yard of broken beer bottles that patrons had discarded after leaving the former establishment. Music from the former
establishment vibrated his windows well after midnight. While Mr. Gault acknowledged that the problems stemmed from the
former clientele, he fears a repeat of the above-described occurrences and that they would be beyond the Petitioner's control.
15. Mr. Beheler resides on the same narrow street as Mr. Gault. Mr. Beheler's eighty-year-old mother lives in
another house on the same street. Their driveways were blocked by former patrons, and their yards were littered.
16. In an attempt to allay the fears of the Protestant, the Petitioner stipulated to certain conditions. The
Petitioner also explained that he intends to cater to a different clientele.
17. Problems which have not been resolved regarding the location are the residential character of the surrounding
area, the proximity of the railroad tracks, and the lack of adequate parking.
18. With two school bus stops being located within .2 of a mile from the proposed location, children are present
in the area.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. The ALJD has subject matter jurisdiction in this matter pursuant to Chapter 23 of Title 1 of the 1976 Code,
as amended.
2. Under S.C. Code Ann. § 61-4-520 (Supp. 1998), no beer and wine permit may be granted unless the location
of the place of business is suitable. Although proper location is not statutorily defined, broad discretion is vested in the
ALJD 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); Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
3. The determination of suitability "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, 326-27, 338 S.E.2d 335, 337 (1985) (citations omitted). The determination is not solely a function of geography.
4. In general, consideration may be given to any factor demonstrating the adverse effect the proposed location
will have on the community. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
5. I have considered all relevant factors and weighed the evidence. The proposed location is situated in a
primarily residential area where children are present, and the proposed location is in close proximity to residences. The
nature of the business, with its operating hours extending to midnight and beyond, is incompatible with the primarily
residential area. The railroad tracks present a hazard for patrons leaving the premises. The lot on which the building is
located does not contain enough usable space for parking, and the additional parking space secured by the Petitioner would
create a hazard for patrons in that they would be required to cross the street late at night after consuming alcoholic
beverages. Furthermore, the Petitioner has very little control over where his patrons park, and he is not in a position to
monitor every patron's car. The posting of "No Parking" signs afforded little relief. Even with official signs posted, patrons
continued to park on the side of the streets. Without adequate parking, the Petitioner's patrons are likely to renew this
practice. The proposed location is an unsuitable and improper one to be licensed to sell beer and wine for on-premises
consumption. Accordingly, the Petitioner's application for an on-premises beer and wine permit must be denied.
ORDER
THEREFORE, DOR shall deny the Petitioner's application for an on-premises beer and wine permit for his establishment
located at 109 Old Buffalo Road, Union, South Carolina.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
October 25, 1999
Columbia, South Carolina |
