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 an expedited contested case hearing. The Petitioner, Margaret
Gathers, is the owner of Gladys’ Sweet Shop, and seeks an on-premise beer and
wine permit for the establishment. A hearing on the merits of this case was
held on September 27, 2006, in Columbia, South Carolina. Notice of the time,
date, place, and subject matter of the hearing was provided to all parties and
the protestants. The parties and protestants were present as indicated above.
The Protestant Christopher Brown was not present and his protest is deemed
abandoned. The Department of Revenue indicated that but for the protests
received, the Department would have issued the permit. Based on the evidence
before me, I find that the location shall be permitted. as requested.
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.
The Petitioner seeks an on‑premises beer and wine permit for the
establishment
known as Gladys’ Sweet Shop,
located at 1029 Beehive Road, Awendaw, South Carolina.
2. Notice of the application was lawfully posted for fifteen days at the
location, and
notice of the application also ran
in The Post and Courier, a newspaper of general circulation in the
area. The protests of Brenda Gathers and Elizabeth Brown were timely received
by the Department.
3.
The Petitioner is a legal resident of the State of South Carolina and
is employed
by the Medical University of South
Carolina as a supervisor of the dietary department.
4.
The Department requested a criminal background check of the Petitioner
by the
State Law Enforcement Division and
determined that the Petitioner is of sufficient moral character to receive a
beer and wine permit. SLED also mapped the area and noted that there were no
schools, churches or playgrounds in the immediate vicinity, although the
nearest residence is ninety-two feet away.
5. The
location has been licensed previously; Petitioner’s family has run this club
intermittently since 1948. Petitioner plans a night club catering to adults
over twenty five years of age. The location would be open Friday, Saturday and
Sunday from 5:00 PM to 11:00 or 12:00; on days that the Petitioner is not working
at her full-time employment, the club may open at 1:00 PM. The proposed
location can accommodate approximately 200—300 people and has parking spaces
behind and beside the building. The Petitioner intends to erect a sign asking
the patrons not to block any driveways in the area. The Petitioner’s mother’s
house is behind this proposed location. There is sufficient light inside and
outside the club, with a street light on the side and a light at the back door
of the building.
6. There
will not be any live music, just a machine that will play “old” music. They
may have a DJ for special occasions. The club will serve chicken and similar
food; the patrons will not be allowed to loiter outside the building.
7. The
Protestants are concerned about the number of alcohol locations in the area. There
is another club, the Blue Moon or Liberty Club, approximately one-quarter mile
down the street. There have been incidents of people hanging out in the
roadway and shootings at the Blue Moon/Liberty Club. The Protestants are
concerned about the presence of trash in the yards and the traffic in the area
of this proposed location.
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.
The applicant has complied with all the provisions of S.C. Code Ann. §61‑4‑520
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).
4. 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).
5. 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).
6. 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.
7. 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).
8. 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 Gladys’ Sweet Shop or Ms.Gathers.
9. Most of
the Protestants’ arguments against the granting of the license sought herein
are that the neighborhood has sufficient alcohol outlets. 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).
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. I find that this location is
suitable for the on‑premises sale of beer and wine.
Although
the concerns of the Protestants are understandable, and the witnesses
were
vocal in their opposition to the location, their arguments were not directed to
any specific problems with Petitioner’s location. Their primary concerns were
related to problems at the other club in the area and the speculation that
similar problems may exist at this 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
at Gladys’ Sweet Shop, 1029 Beehive Road, Awendaw, 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
November 15,
2006
Columbia, South
Carolina |
