ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE
CASE
This matter is before the Administrative Law Court (“ALC”) for a final
order and decision following a contested case hearing pursuant to S.C. Code
Ann. §§ 1-23-310 et seq. (2005), S.C. Code Ann. § 1-23-600(B) (Supp.
2005), and S.C. Code Ann. § 61-2-260 (Supp. 2005). The petitioner, Diane’s Stable
Steak House, LLC, d/b/a Diane’s Stable Steak House (“Petitioner”), applied for
an on-premises beer and wine permit pursuant to §§ 61-4-500 et seq. and
for a liquor by the drink license pursuant to §§ 61-6-1600 et seq. for
the location at 111 Grace Street, Prosperity, South Carolina 29127. Ms.
Deborah Cook and Mr. James H. Counts, Jr. (“Protestants”) filed written protests
to the Petitioner’s application. Respondent South Carolina Department of
Revenue (“Department”) denied the application pursuant to § 61-4-525 and §
64-6-1825 due to the receipt of the Protestants’ valid public protests. The
Department represented that it would have granted the permit but for the
receipt of the public protests.
After
notice to the parties and the Protestants, the court held a hearing on this
matter on October 6, 2006. Both parties and the two Protestants, Ms. Deborah
Cook and Mr. James H. Counts, Jr., appeared at the hearing. Evidence was
introduced and testimony presented. After carefully weighing all of the
evidence, the court finds that the Petitioner’s application for this location
should be granted subject to the restriction detailed below.
ISSUE
The only issue in dispute is the suitability of the location. §§
61-4-520(5)-(6); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276
S.C. 138, 276 S.E.2d 308 (1981).
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a
preponderance of the evidence.
Evidence
was presented regarding all of the relevant statutory criteria. Notice of the
time, date, place, and subject matter of the hearing was given to all parties
and the Protestants.
The
Petitioner seeks a permit for the retail sale of beer and wine for on-premises
consumption and a license to sell liquor by the drink for the location at 111
Grace Street, Prosperity, South Carolina 29127. The proposed location is
inside the municipal limits of Prosperity. Notice of the application was
lawfully posted at the location and published in a newspaper of general
circulation.
Ms. Diane Folden is sole owner of the business seeking the requested
permit and license. Folden is over the age of twenty-one. She is of good
moral character and has never had a permit or license to sell beer, wine, or
liquor revoked. She has no criminal record and does not owe the state or
federal government any delinquent taxes, penalties, or interest.
The Petitioner seeks an on-premises beer and wine permit and a license to
sell liquor by the drink for a restaurant, Diane’s Stable Steak House, which it
has operated since June of 2006. The restaurant operated as Stable Steak House
at the proposed location for approximately five years under two previous owners
before the Petitioner took over the business. Under the previous owners the
restaurant was permitted to sell beer, wine, and liquor. The evidence reveals
no problems related to the sale of beer, wine, or liquor since the restaurant’s
inception. Additionally, upon taking over the restaurant, the Petitioner obtained
a temporary license to sell beer, wine, and liquor which she held for the 120
days permitted by the applicable statute without any citations for violations
of the alcoholic beverage control statutes or incidents necessitating police
involvement.
The proposed location is on Grace Street in the town square of
Prosperity, South Carolina. The area immediately surrounding the proposed
location is typical of a downtown area of a small municipality, with mixed
commercial and residential use. In the vicinity of the proposed location are
other businesses such as a real estate office, an insurance company, a seed
company, an automobile parts store, a law office, a dry cleaner’s, a bank, an
antique shop, and other similar establishments. Residential apartments are
also near the proposed location, some of which are located above the stores and
offices. Parking at the proposed location is adequate.
The proposed location is a family restaurant with a separate bar area. Ms.
Jenny Bedenbaugh, the prior operator of the restaurant, testified regarding the
nature of the business under her management. Ms. Bedenbaugh described the
restaurant as a family-style steakhouse where patrons could bring their
children. She described a “kids’ room” in the front of the restaurant where
children can play while their parents enjoy their meal. Additionally, she
testified that there is a television in the bar area where children frequently
watch cartoons when their parents eat in the bar area. Ms. Folden testified
that she did not intend to make substantial changes to the operation of the
restaurant from that of Ms. Bedenbaugh.
The evidence shows that the restaurant is not currently the type of establishment
that people typically patronize simply to drink alcohol, but rather is a place
where patrons can have a beer, glass of wine, or a cocktail with their dinner.
The restaurant is open for breakfast, lunch, and dinner. Beer, wine, and
liquor are sold only during the hours when dinner is being served. The
restaurant is open Tuesdays through Thursdays from 7:00 a.m. to 2:00 p.m. and
from 5:00-9:00 p.m., on Fridays and Saturdays from 7:00 a.m. to 2:00 p.m. and
5:00-10:00 p.m., and on Sundays for a lunch buffet from 10:30 a.m. to 2:00
p.m. The restaurant occasionally offers live entertainment in the form of an
acoustic guitarist on Thursday evenings. The acoustic guitar is not audible outside
the restaurant.
The Protestants testified as to various concerns with the proposed
location. Ms. Deborah Cook, who operates a nearby business and resides above
her store, expressed “fears” that Ms. Folden intends to change the nature of
the business on the weekends. She stated that she was afraid that Ms. Folden
would promote nightlife in Prosperity by bringing in live bands and
constructing a deck outside the restaurant, creating noise problems for nearby
residents. She testified that under Ms. Folden’s management, the restaurant
had been open later on weekends, sometimes until 11:00 p.m. She also stated
that Ms. Folden had physically expanded the square footage of the bar area.
Furthermore, Ms. Cook expressed concerns about the propriety of allowing
children to play without supervision in the “kids’ room” in a restaurant where
beer, wine, and liquor are served. However, Ms. Cook also testified that she
had no problem with the restaurant as long as it continued to be operated in
the same manner that it had been under Ms. Bedenbaugh’s management. The record
shows that Ms. Cook is the ex-wife of the acoustic guitarist who plays on
Thursday evenings in the restaurant.
Mr. James Counts also testified in opposition to the application. He
stated that under Ms. Bedenbaugh’s ownership, the Stable Steak House was his
favorite restaurant. He testified that Ms. Bedenbaugh had handled the
distribution of alcohol tastefully, but that he became concerned when Ms.
Folden began promoting the sale of “buckets of beer” that Ms. Folden would
encourage more alcohol consumption that Ms. Bedenbaugh had. He also expressed
concerns about the allowance of children in the bar area. He further expressed
concerns about the proximity of children attending the daycare and after school
program offered by a nearby church. Finally, he voiced objection to Ms.
Folden’s rumored plans for extended night hours, an outdoor deck, and live
bands, although he had no objection to the acoustic guitarist. Like Ms. Cook,
Mr. Counts testified that he had no problem with the restaurant if Ms. Folden continues
to operate it as Ms. Bedenbaugh did.
In rebuttal, the Petitioner offered the testimony of Mr. David E.
Bedenbaugh in support of its application. Mr. Bedenbaugh resides in an
apartment immediately adjacent to the restaurant and owns several of the nearby
apartments. He has no complaints about the restaurant and is a frequent patron.
He expressed enthusiastic support.
Ms. Folden testified that while she had originally considered expanded
night hours, she abandoned this plan when she realized that customers would not
stay late enough to justify a later closing time. She did not, however,
address the construction of an outdoor deck or the expansion of the bar area.
LAW
Based upon the foregoing Findings of Fact, the court concludes the
following as a matter of law.
1. Jurisdiction
Jurisdiction over this case is vested with the South Carolina
Administrative Law Court pursuant to §§ 1-23-310 et seq., § 1-23-600(B),
and § 61-2-260. “[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. S.C. Alcoholic
Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App.
1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n,
269 S.C. 13, 235 S.E.2d 806 (1977). The weight and credibility assigned to
evidence presented at the hearing of a matter is within the province of the
trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. &
Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a
trial judge who observes a witness is in the best position to judge the
witness’s demeanor and veracity and to evaluate the credibility of his
testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d
154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389
S.E.2d 448, 450 (Ct. App. 1990).
2. Suitability
of Location
a. Generally
Section 61-4-520 establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the
proposed location be a proper and suitable one. See §§ 61-4-520(5)-(6). Additionally,
§ 61-6-1820 sets forth the basic criteria for the issuance of a liquor license.
However, a liquor license may be denied if the proposed location is not
suitable. See Schudel v. S.C. Alcoholic Beverage Control Comm’n,
276 S.C. 138, 276 S.E.2d 308 (1981). Therefore, either a permit or license may
be denied if the location of the business is not a proper one.
b. Factors
in Determining Proper Location
“Proper location” is not statutorily defined, but broad
discretion is vested in the trier of fact to determine the fitness or
suitability of a particular location for the requested permit. See Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). In
determining whether a proposed location is suitable, it is proper for this
tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 326, 338 S.E.2d 335, 337 (1985); Palmer,
282 S.C. at 249, 317 S.E.2d at 478 (citing Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972)). The determination of suitability of location is not
necessarily solely a function of geography. Rather, 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,
287 S.C. at 326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276
S.E.2d at 308. Further,
a liquor license or permit may
be properly refused on the ground that the location of the establishment would
adversely affect the public interest, that the nature of the neighborhood and
of the premises is such that the establishment would be detrimental to the
welfare . . . of the inhabitants, or that the manner of conducting the
establishment would not be conducive to the general welfare of the community.
48
C.J.S. Intoxicating Liquors § 121 at 501 (1981).
Other factors may be considered when determining whether a
location is proper. For example, a liquor license shall not be granted if the
place of business is within 300 feet (if within a municipality) or within 500
feet (if outside a municipality) of any church, school, or playground. §
61-6-1820(3); § 61-6-120. Although the General Assembly did not provide
absolute statutory distance requirements for beer and wine permits as it did
for liquor licenses, the proximity to residences, churches, schools, and
playgrounds may be considered for beer and wine permits as well. § 61-4-520(6); Smith, 258 S.C. at 504, 189 S.E.2d at 301. Therefore, the decision as
to whether the proximity is improper for a beer and wine permit must be made on
a case-by-case basis resting upon the peculiar facts of each permit request.
Additionally, consideration can be given to the impact the
issuance of the permit or license will have on law enforcement. Fowler v.
Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); Roche v. S.C. Alcoholic
Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Evidence
that the granting of a permit will place a strain upon police to adequately
protect the community must be weighed. Moore v. S.C. Alcoholic Beverage
Control Comm’n, 308 S.C. 160, 162, 417 S.E.2d 555, 557 (1992). Denial is
appropriate where the public areas surrounding the proposed location have been
the source of constant law enforcement problems or significant problems with
public intoxication. Roche, 263 S.C. at 451, 211 S.E.2d at 243. Another
pertinent factor is whether police have been summoned to the scene on prior occasions
when licensed to another party. Schudel, 276 S.C. at 141-42, 276 S.E.2d
at 309-10. It is relevant whether the location is near other locations that
have either been a constant source of law enforcement problems or are locations
where young people congregate and loiter. Palmer, 282 S.C. at 250, 317
S.E.2d at 478.
Similarly, consideration can be given to whether the location
is heavily traveled or creates a traffic danger. Id. Furthermore, whether the location has in the recent past been permitted and
whether the location is now more or less suitable than it was in the past is a
relevant factor. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Finally,
a valid consideration is whether the surrounding area is substantially
commercial. Id.; Byers v. S.C. Alcoholic Beverage Control Comm'n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
Without sufficient evidence of an adverse impact on the
community, a permit or license application must not be denied if the statutory
criteria are satisfied. The fact that the issuance of a permit or license is
protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981). Moreover, the denial of a permit
or license to an applicant on the ground of unsuitability of location is
without evidentiary support when relevant testimony of those opposing the
requested license or permit consists entirely of opinions, generalities, and
conclusions not supported by the facts. Taylor, 261 S.C. at 171, 198
S.E.2d at 802.
c. Conclusions
After carefully weighing the evidence and applying the law as discussed
above, the court finds the proposed location to be suitable as long as music is
not audible outside the restaurant during late evening hours.
More than one witness testified that the restaurant was an asset to the
town of Prosperity with a positive impact on the community. Both of the
Protestants testified that they had no objection to the restaurant as long as
it was run in a similar manner as in the past. The court finds that the
Protestants’ objections to the Petitioner’s application, while not entirely
without foundation, were largely speculative and conjectural, generally born
out of “fears” that the operation of the restaurant would change as well as various
rumors, several of which were refuted by Ms. Folden. Ms. Folden specifically
stated under oath that she intended to operate the restaurant along the same
lines as Ms. Bedenbaugh, and she contradicted the speculation that closing time
would be extended, expressing her intent to continue to close the restaurant at
10:00 p.m. on weekends. She did not, however, refute Ms. Cook’s assertion that
she had expanded the bar area or deny that she planned to construct an outdoor
deck.
The court observes that the proposed location has been licensed without
incident for five years and that the Petitioner has operated the restaurant
with a temporary license for 120 days with no problems that would
contraindicate licensure. No evidence was offered that the proposed location has
been a source of problems for law enforcement, either under the Petitioner’s management
or that of prior licensees. Ms. Cook testified that Prosperity has a
“skeleton” police force, but the court notes that the local police department
did not protest the application and there was no evidence that licensure of the
requested location would place a strain on existing law enforcement resources.
Additionally, although Ms. Cook asserted that she had observed Ms. Folden
providing transportation to patrons of the restaurant at night, there was no
indication that Ms. Folden’s measures to ensure that her patrons did not drive
while impaired were associated with any significant problems with public
intoxication at the location. Finally, at least two other restaurants in the
immediate surrounding area are licensed to sell beer, wine, or liquor and there
is no evidence in the record of any problems associated with these locations. Moreover,
neither of the Protestants filed written protests to the applications of those
other locations.
The court concludes that the Protestants’ objections related to children
were secondary to their objections regarding the potential for live music,
extended nighttime hours, and the promotion of additional alcohol sales. Neither
of the Protestants ever protested the license applications or renewals of the
previous operators of the restaurant despite Ms. Bedenbaugh’s preexisting
practice of allowing children to watch cartoons in the bar area and play in the
“kids’ room,” and despite the proximity of the church. Additionally, both of
the Protestants expressed their support and satisfaction with the manner in
which Ms. Bedenbaugh operated the restaurant, which would have included her
arrangements for children, and stated that they had no problem with the
Petitioner’s application as long as Ms. Folden continued to run the restaurant
in the same manner as Ms. Bedenbaugh. Finally, the court notes that no alcohol
is served at the restaurant during the hours when children are present for daycare
or after-school care at the church.
The proposed location is not within 300 feet of any church, school, or
playground and thus does not violate the statutory prohibition for the sale of
liquor by the drink. Nonetheless, the court finds that its proximity to
occupied residential apartments makes it unsuitable for the performance of live
music that is audible by neighboring residents. See S.C. Code Ann. §
61-4-520(6) (Supp. 2005); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301
(1972); Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243,
246, 407 S.E.2d 653, 655 (1991) (holding that proximity to a residence is by
itself sufficient to support a finding of unsuitability and denial of a permit).
Although Ms. Folden asserted that she has not engaged live entertainment beyond
the acoustic guitarist and that she intends to adhere to a 10:00 p.m. closing
time on weekends, the court is mindful that circumstances and plans can change. The evidence presented does not warrant a restriction as to square footage
or hours of operation; however, because of the proximity of the proposed
location to residences, the
permit and
license sought should be restricted so as not to allow music that is audible
outside the restaurant past 9:00 p.m. on weeknights and 10:00 p.m. on
weekends. See § 61-2-80. With this restriction, the location is
suitable for the permit and license sought.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that, with the above-noted restriction, the Petitioner
meets all of the statutory requirements for the issuance of an on-premises beer
and wine permit and liquor by the drink license. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an on-premises
beer and wine permit and liquor by the drink license for the premises located
at 111 Grace Street, Prosperity, South Carolina 29127 in accordance with §
61-2-80, § 61-4-540, and § 61-6-1820, subject to the Petitioner’s entering a
written agreement with the Department not to allow music that is audible
outside the restaurant after 9:00 p.m. Sunday through Thursday and 10:00 p.m.
on Friday and Saturday.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
October 11, 2006
Columbia, South Carolina
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