ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter
comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann.
§61-2-90 (Supp. 2005) and S. C. Code Ann. §§1-23-310 et seq. (1986 and
Supp. 2005) for a contested case hearing. The Petitioner, Shaum’s Casablanca, applied
for an on-premise beer and wine permit and a nonprofit private club sale and
consumption license. The Department of Revenue denied the application due to a
timely protest by Mr. R. H. Patterson. Following the Department’s denial, the
Petitioner requested a contested case hearing at this court. A hearing on the
merits of this case was held on September 11, 2006, in Columbia, South
Carolina. Notice of the time, date, place, and subject matter of the hearing
was provided to all parties and the protestant, and they were present as
indicated above. The Department stipulated that the applicant met all the
statutory and regulatory requirements for the permit and license, and, but for
the valid protest, the Department would have granted the permit and license.
The parties agreed that the testimony and evidence presented would be limited
to the suitability of the location to address the concerns of the protestant. Based
on the evidence before me, I find that the location shall be permitted as
applied for.
FINDINGS
OF FACT
Having observed
the testimony of the witnesses and exhibits presented at the hearing in this
matter and closely passed upon their credibility, I make the following Findings
of Fact by a preponderance of the evidence:
1. Notice of the
time, date, place and subject matter of the hearing was timely given to all the
parties and the Protestant.
2. The Petitioner seeks an on‑premises beer and wine permit
and a nonprofit private
club sale and consumption license for
the establishment known as Shaum’s Casablanca The proposed location is 4723
Augusta Road, Greenville, South Carolina; it will be a sports bar and will be
open seven days a week. The hours will be 5:00 PM to 4:00AM Monday through
Friday and Saturday and Sunday 5:00 PM to 2:00 AM. The capacity of the club is
approximately 100-200 people.
3. Notice of
the application was lawfully posted for fifteen days at the location, and notice
of the application also ran in The Greenville News, a newspaper
of general circulation in the area. The protest of R.H. Patterson was timely
received by the Department.
4. The
Petitioner is a valid corporation of the State of South Carolina, and has been
in existence for over fifteen years.
5. The location
has been licensed previously; in addition, Joe R. Armstrong, the President of
the corporation, testified that he has held alcohol licenses and permits in the
past and that there were no alcohol violations or law enforcement problems at
these licensed premises. The location will be a sports bar which will serve
hamburgers and chicken wings and will have fifteen to twenty televisions.
6. There
are ample parking spaces on the surrounding one to two acres of land. The area
is primarily commercial, although there is an apartment complex across the
street. No one from this apartment complex or the Greenville County Sheriff’s
Department protested the granting of a license at this location. The SLED
report noted that there were no schools or churches in the immediate area.
7. The
Protestant has concerns about the number of alcohol locations in the area. He
testified that he has no problems with Mr. Armstrong personally. His primary
goal is to minimize the number of licensed premises in Greenville County and to
reduce the effects on the citizens of South Carolina who use alcohol. Mr.
Patterson testified that by definition the alcohol purveyors are “drug
pushers.” He believes that the prevalence of alcohol is a health risk for the
state and contributes to the number of domestic violence cases.
CONCLUSIONS
OF LAW
Based upon the
foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court has jurisdiction
in this matter
pursuant to S.C. Code Ann. §61‑2‑260
(Supp. 2005).
2. The factual determination of whether or not an application is
granted or denied is
usually the sole prerogative of the
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).
3. A
license for the sale and consumption of alcoholic beverages must not be granted
unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2005) are met. That
section requires that the principals and applicants must not only be of good
moral character, but they must also have a reputation for peace and good
order. Additionally, Section 61-6-1820 provides that a sale and consumption
license shall not be granted unless the proposed location meets the minimum
distance requirements from churches, schools, or playgrounds as set forth in
S.C. Code Ann. §61-6-120 (Supp. 2005).
4. S.C.
Code Ann. 61-6-20(6) (Supp. 2005) establishes that a nonprofit organization is
not open to the general public and only the members and guests of the club may
consume alcoholic beverages upon the premises.
5. The applicant has complied with all the provisions of S.C.
Code Ann. §61‑4‑520
(Supp. 2005) regarding application
conditions. The only remaining issue is the suitability of the location
pursuant to S.C. Code Ann. § 61‑4‑520 (6) and (7) (Supp. 2005).
6. Licenses
and permits issued by the State for the sale of beer, wine, and liquor 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 satisfied. Because the tribunal authorized to grant the issuance of a
license is also authorized, for cause, to revoke it, that tribunal is also
authorized to place restrictions or conditions on the license. See Feldman
v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
7. Without
sufficient evidence of an adverse impact on the community, the application must
not be denied 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).
8. As
the 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
beer and wine permit using broad but not unbridled discretion. Ronald F.
Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984,
dealing with a Retail Liquor License). It is also the fact finder’s
responsibility to judge the demeanor and credibility of witnesses and determine
the relevance and weight of any testimony and evidence offered.
9. Although
“proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast
Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence adverse to the location may be considered.
The proximity of a location to a church, school or residences is a proper
ground by itself upon which the location may be found to be unsuitable and a
license denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653
(1991). Further, the court can consider whether “there have been law
enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984).
10. 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). The Protestant did not present any specific incident reports dealing with the principals of Shaum’s Casablanca or even this
particular location.
11. The
Protestant’s arguments against the granting of the license sought herein are general
ones--that the neighborhood has sufficient alcohol outlets and the problems
that alcohol causes in this state. However, an aversion to the sale of
alcoholic beverages is not within the statutory grounds for denial of an
application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121
(1981).
12. The
Department of Revenue, which is the governmental body charged with
regulating and enforcing violations
concerning permits and licenses involving the sale of beer and wine, did not
object to the granting of a permit in this case. Likewise, neither the
Greenville County Sheriff’s Department nor any resident of the apartment
complex across from the proposed location objected to the application. I find
that the Petitioner meets the statutory requirements for holding a beer and
wine permit and a nonprofit private club sale and consumption license as a
nonprofit organization at the proposed location.
Although the concerns of the Protestant are understandable, and
the witness
exhibited great credibility in his opposition
to the location, his arguments were not directed to any specific problems with
Petitioner’s location. There were no specific facts dealing with this
applicant or this particular location. I find that this location shall be
permitted.
ORDER
Based upon the
above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on‑premises beer and wine permit
and nonprofit private club sale and consumption license at Shaum’s Casablanca, 4723
Augusta Road, Greenville, SC is GRANTED upon payment of any required
fees and costs by the Petitioner to the Department.
AND IT IS SO
ORDERED.
__________________________________
CAROLYN
C. MATTHEWS
Administrative
Law Judge
October 18, 2006
Columbia, South
Carolina |
