SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§1-23-310, et seq. (1986 & Supp. 1998) and S.C. Code Ann. §§ 61-1-55 (Supp. 1998) upon the filing of an application by Julie Detwiler of Larry Detwiler Associates, ("Petitioner") for renewal of an on-premises beer and wine permit {BW 847700; AI # 2473036} with the South Carolina Department of Revenue ("DOR"). Several written protests were received by DOR in opposition to the permit renewal, and the case was transmitted to the Administrative Law Judge Division ("ALJD"). Protestant, George Estes moved to intervene and was admitted without objection. A contested case hearing was conducted on November 16, 1999, at the offices of the ALJD in Columbia, South Carolina. Upon review of the relevant and probative evidence and applicable law, the application for an on-premise beer and wine permit is granted with the restrictions set forth herein.

DISCUSSION

The parties stipulated at the hearing that the only issues in dispute were the suitability of the location and the proposed business activity. The Intervenor-Protestant contends that the location is unsuitable because inadequate parking presents a danger to traffic and pedestrians, the proposed location has attracted criminal activity, the proposed location does not have adequate police protection, and patrons of the proposed location create an excessive disturbance in the area. Testifying at the hearing in protest of the proposed location were George Estes, Truman C. Henderson, Troy Ray Kennedy and Robert Emory.

Larry Detwiler, husband of the Applicant and co-owner of the proposed location, and Diane Hornsby, manager of the business, testified in support of the renewal application. Petitioner asserts that there is adequate customer parking to accommodate the present level of patrons. The proposed location was originally purchased by Petitioner and operated as a convenience store which included the sale of beer and wine. A convenience store opened across the street from Petitioner's location. As a result, the proposed location realized a substantial decrease in business. The business focus of the proposed location changed from strictly a convenience store to a bar type setting selling beer and sundry items. The proposed location has two pool tables and two video poker machines at its premises. Karaoke is provided at the proposed location on Saturday nights. The proposed location's hours of operation are from 3:00 p.m. until 9:00 or 9:30 p.m. with later closing hours on the weekend, with the exception of Saturday, at which time the proposed location closes at 12:00 a.m.

The only recent criminal activity relating to the proposed location since Petitioner's application for renewal of an on-premises beer and wine permit involved several robberies of the proposed location. Since Petitioner opened the proposed location, there have been no criminal citations or warnings issued to Petitioner. Protestants cite recent arrests of persons driving under the influence, litter and vandalism problems in the area, claiming that the proposed location is the likely source. However, they offer no probative evidence to substantiate those beliefs. Complaints of patrons wandering the neighborhood and drinking outside on the premises of the proposed location, as well as excessive noise and traffic problems in the area, can be attributed to the proposed location.

It is significant that the proposed location has operated as a convenience store for over thirty years and has been licensed to sell beer and wine during the entire period. While some area residents may find the existence of the proposed location unpleasant, there was no persuasive evidence to establish that it is any less suitable now to sell beer and wine than it was when this permit or previous permits were issued.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

1. Petitioner seeks renewal of on-premises beer and wine permit BW 847700, for a location known as Jabills Stop N Shop at Box 291, Route 1, Highway 25, Ware Shoals, Laurens County, having filed a renewal application with DOR on November 30, 1998.

2. Upon motion and without objection, George Estes was admitted as an Intervenor-Protestant.

3. Notice of the time, date, and location of the hearing was given to all parties and Protestants.

4. The DOR file was incorporated into the record at the hearing, with the exception of the written statements contained in the DOR file of the Protestants not called as witnesses at the hearing, such statements being hearsay evidence.

5. The proposed location is located in an unincorporated area of Laurens County on Highway 25 North, near the Town of Ware Shoals.

6. The area immediately surrounding the proposed location is rural in nature and includes commercial and residential properties.

7. Intervenor George Estes resides approximately 366 feet from the proposed location.

8. The proposed location was initially operated as a convenience store by Petitioner and her husband having opened on July 3, 1995, offering miscellaneous items, such as gasoline, automotive supplies, snacks, cold medicines, toiletries, soft drinks, beer and wine.

9. The Petitioner no longer operates the proposed location primarily as a convenience store due to a decrease in business from a competing store located across the street from the proposed location. The competing store was closed in July, 1999.

10. The business now operates primarily as a bar with coin-operated video poker machines, pool tables, and a stage for Karaoke performances.

11. The business still offers miscellaneous items such as snacks, sodas, and some automotive

supplies, and toiletries in addition to beer.

12. The proposed location has tables, chairs, and booths for patrons.

13. There is no kitchen at the proposed location.

14. There are four bathrooms at the proposed location.

15. There are approximately fifteen (15) parking spaces at the proposed location.

16. Because of the limited parking available at the proposed location, during peak business hours some patrons would park automobiles along the road right-of-way on either side of the road in front of the proposed location.

17. Parking along the road right-of-way, especially at night, may create a hazard to drivers and pedestrians.

18. Intoxicated patrons have been loitering outside the proposed location. Furthermore, the Petitioner's patrons have been playing loud music, drinking beer and urinating outside of the location.

19. Petitioner's patrons have on several occasions wandered onto the property of residents residing near the proposed location and have displayed unruly behavior.

20. The only criminal activity relating to the proposed location since Petitioner's application for renewal, involved an altercation between patrons, and several burglaries of the proposed location.

21. No charges were pressed against the owners, managers, or employees of the proposed location in the incidents involving patrons.

22. The proposed location is within the jurisdiction of the Laurens County Sheriff's Department.

23. The response time for the Sheriff's Department to the proposed location is approximately 25-35 minutes.

24. Store manager Diane Hornsby has extensive experience managing and operating businesses licensed to sell beer and wine.

25. Manager Diane Hornsby regularly consults with the local SLED Alcohol Enforcement Unit agent for advice and information relating to employee training, enforcement procedures, and changes in the law relating to the sale and service of beer and wine.

26. Since Petitioner opened the proposed location, there have been no criminal or administrative citations or warnings issued to her.

27. Petitioner has never been cited for any violations of the alcoholic beverage control laws nor has she ever had a permit to sell beer and wine revoked.

28. Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina and

has maintained her principal residence in South Carolina for more than thirty days.

29. Larry Detwiler, owner of the proposed location and husband of the Petitioner, is over twenty-one years of age, is a citizen of the State of South Carolina and has maintained his principal residence in South Carolina for more than thirty days.

30. Petitioner has no criminal record and is of good moral character to receive a beer and wine permit.

31. Larry Detwiler has no criminal record and is of good moral character to receive a beer and

wine permit.

32. The Department of Revenue did not oppose Petitioner's application.

33. The Protestants primarily cite noise emanating from music regularly played at the proposed location, inadequate parking, and the unruly behavior of the patrons as the reasons the proposed location is unsuitable.

34. Protestant's contention that renewal of the permit would detrimentally affect the well- being of the community was based upon generalities, opinions, and conclusions, without factual support.

35. Based upon the continuous history of the proposed location as a licensed location for on-premises beer and wine sales and the lack of relevant, probative evidence of unsuitability, the proposed location, subject to restrictions, is suitable to continue to be licensed to sell beer and wine for on-premises consumption.

CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Judge Division has jurisdiction over this subject matter pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1998) and 1-23-310, et seq. (1986 & Supp. 1998).

2. S.C. Code Ann. § 61-9-320 (Supp. 1998) provides the criteria to be met by an applicant for renewal of a beer and wine permit.

3. "[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 Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.App. 1984).

4. As a trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Byers v. South Carolina Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.App. 1984).

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. 566, 316 S.E.2d 705 (Ct.App. 1984).

6. In determining whether a proposed location is suitable, it is proper for the tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 594, 189 S.E.2d 301 (1972); Palmer v. South Carolina Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.App. 1984).

7. When the relevant testimony of those opposing the permit consists entirely of opinions, generalities, and conclusions not supported by fact, the denial of the permit on the ground of unsuitability of location is unfounded. Such unsupported allegations are an insufficient basis for denial of a permit. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. A renewal application must not be denied if only generalities, opinions, conclusions, and hearsay support accusations of unsuitability. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

9. Prior suitability is a factor to be considered. There is no evidence that the proposed location is any less suitable now than it was when previously licensed over the past years. Taylor v. Lewis, supra.

10. There is no evidence that the crime rate or traffic at the proposed location is higher now than since the last permit was issued. Byers v. South Carolina Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.App. 1984).

11. Law enforcement is a consideration since evidence of a strain upon police protection is pertinent in deciding whether to grant a beer and wine permit. Here, no substantial record of increased criminal activity exists for the location and such a factor weighs in favor of the permit. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

12. Petitioner meets the statutory requirements to hold a permit to sell beer and wine. S.C. Code Ann. § 61-9-320 (Supp. 1998).

13. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, privileges granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See, Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

14. Based upon the history of the proposed location as a licensed location and Petitioner's agreement and compliance with the following restrictions, the beer and wine permit renewal sought by Petitioner is granted, with the following restrictions.

RESTRICTIONS

1. The Petitioner or its employees shall maintain proper lighting around his proposed location to discourage criminal activity. The Petitioner shall insure that the lights do not reflect or shine upon the local residences.

2. The Petitioner and its employees shall prohibit loitering and the consumption of beer or wine by the patrons/customers in the parking lot area of the proposed location. The Petitioner shall have its employees check the parking lot area on an hourly basis to ensure that no one is loitering upon his premises.

3. The Petitioner and its employees shall prohibit the patrons/customers from leaving the premises to wander the surrounding neighborhood and/or interfere with the local residents and their property.

4. The Petitioner and its employees shall pick up all trash on the premises of the proposed location each night after the close of business.

5. The Petitioner and its employees shall insure that all patron/customer vehicles are properly parked in designated parking spaces and shall prohibit at all times the parking of patron/customer vehicles on the highway and/or highway right-of-way.

6. The Petitioner and his employees shall at all times during business hours keep the doors of the proposed location closed to prevent excessive noise from disturbing the local residents.

7. The Petitioner and his employees shall at all times during business hours keep the noise level down to ensure it can't be heard by adjoining neighbors in their residences. If necessary, it must install sound barriers inside the location.

ORDER

IT IS THEREFORE ORDERED that the beer and wine permit renewal sought by Petitioner is granted upon the Petitioner's agreement to adhere to the restrictions set forth above.

IT IS FURTHER ORDERED that a violation of the above restrictions be considered a violation against the permit and may result in a fine, suspension or revocation.

AND IT IS SO ORDERED.

__________________________________________

Marvin F. Kittrell

Chief Administrative Law Judge

December 21, 1999

Columbia, South Carolina.