ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE
CASE
The above-captioned case comes before this Court pursuant to S.C.
Code Ann. § 61-2-260 (Supp. 2005), S.C. Code Ann. §
1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§ 1-23-310
et seq. (2005) for a contested case hearing.
Petitioner Bruce Yaun, Jr., seeks an on-premises beer and wine
permit for his pool hall located at 1959 Old Augusta Road in
Warrenville, South Carolina. Respondent South Carolina
Department of Revenue (Department) denied Petitioner’s
application because of protests filed against the application by
nearby residents Charles Kyzer and William and Lynnette Tauton and
by the Aiken County Sheriff’s Office and because of its own
finding that Petitioner lacks the good moral character necessary to
hold a beer and wine permit. Prior to the initiation of this
contested case, the Aiken County Sheriff’s Office withdrew
its protest of Petitioner’s application based upon his
agreement to not place any video gambling machines or other
gambling devices in his pool hall. After timely notice to the
parties and the remaining protestants, a hearing of this case was
held on Thursday, November 2, 2006, at the South Carolina
Administrative Law Court in Columbia, South Carolina. Based upon
the evidence presented at the hearing regarding the suitability of
the proposed location and Petitioner’s suitability to hold
the requested permit, I find that Petitioner’s application
for an on-premises beer and wine permit should be granted with
certain restrictions.
FINDINGS OF
FACT
Having carefully considered all testimony, exhibits, and arguments
presented at the hearing of this matter, and taking into account
the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
1. On April 20,
2006, Petitioner Bruce Yaun, Jr., submitted an application to the
Department for an on-premises beer and wine permit for his pool
hall located at 1959 Old Augusta Road in Warrenville, South
Carolina. This application and the Department’s file on
the application are hereby incorporated into the record by
reference.
2. Notice of
Petitioner’s application was published once a week for three
consecutive weeks in The State, a newspaper published in
Columbia, South Carolina, and circulated in Aiken County, South
Carolina, and proper notice of the application was posted at the
proposed location for fifteen days.
3. Petitioner is
over twenty-one years of age, has no delinquent state taxes, and is
a legal resident of the United States and the State of South
Carolina. Further, Petitioner resides and maintains his
principal place of abode in South Carolina, and did so for at least
thirty days prior to filing his application for a beer and wine
permit.
4. Petitioner has
not had a beer or wine permit issued to him suspended or revoked,
and the record does not reveal that Petitioner has committed any
violations of South Carolina’s alcoholic beverage laws.
Petitioner does, however, have a criminal record. He was
arrested for domestic violence in 1990, two counts of writing a
fraudulent check in 2004, unlawfully carrying a weapon in 2005,
writing a fraudulent check in 2005, and two gambling offenses in
2006 related to his operation of video gambling machines at the
location in question. Of these arrests, the domestic violence
charge and the 2005 fraudulent check charge were dismissed, the
2004 fraudulent check charges led to two convictions for writing a
fraudulent check for less than $500, and the unlawful carrying of a
weapon and gambling charges are apparently still pending.
Moreover, Petitioner failed to identify his 2004 fraudulent check
convictions on his permit application. While the Department
initially denied Petitioner’s application, in part, because
of his fraudulent check conviction and pending gambling charges,
the Department withdrew its objections to Petitioner’s
suitability to hold the requested permit at the hearing of this
matter. In particular, the Department recognized
Petitioner’s stipulation that he would not have any video
gaming devices or other gambling devices on the licensed premises
and acknowledged Petitioner’s efforts to repair his criminal
record, including having his recent fraudulent check charge
dismissed and seeking to have his earlier conviction expunged.
5.
Petitioner’s pool hall is modest operation, consisting of an
approximately 1500-square-foot cinderblock building with two pool
tables, a jukebox, a karaoke machine, and three televisions.
In order to soundproof and improve the appearance of the building,
Petitioner has placed siding on the outside of the building and has
installed insulation and sheetrock on the interior walls.
Petitioner generally operates the pool hall between 2 p.m. and
midnight, Wednesday through Saturday. As noted above,
Petitioner has stipulated that he is willing to condition his beer
and wine permit upon not having video gaming machines or other
gambling devices on the premises.
6.
Petitioner’s establishment is located in a mixed residential
and commercial area of Warrenville, South Carolina, on Old Augusta
Road, a four-lane highway running between Aiken, South Carolina,
and Augusta, Georgia. While there are no schools or
playgrounds within the vicinity of Petitioner’s business,
there is a Church of Christ within one-tenth of a mile of the
location and there are a number of residences within several
hundred feet of the location, including several residences directly
across Old Augusta Road from the business and several mobile homes
off of a dirt road to the rear of the establishment.
7. At the hearing
of this matter, the sole remaining protestant of record, Charles
Kyzer, testified regarding his opposition to Petitioner’s
application. Specifically, Mr. Kyzer, who lives immediately
across Old Augusta Road from the proposed location, stated the he
is concerned that the disturbances created outside the business,
including loud car stereos, patrons raising their voices and
cursing, and other nuisances, will adversely affect the time he
spends with his grandchildren, whom he frequently has at his
home. However, Mr. Kyzer also conceded at the hearing that he
has patronized Petitioner’s business in the past, even
winning a video gaming tournament held at the location within the
past year.
CONCLUSIONS OF
LAW
Based upon the foregoing Findings of Fact, I conclude the following
as a matter of law:
1. Jurisdiction
over this case is vested with the South Carolina Administrative Law
Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2005), S.C.
Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann.
§ 1-23-310 et seq. (2005).
2. “[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).
3. S.C. Code Ann.
§§ 61-4-500 through 61-4-620 (Supp. 2005) govern
applications for retail beer and wine permits and establish the
criteria for determining eligibility for those permits.
Further, S.C. Code Ann. § 61-2-100 (Supp. 2005) lays out the
general requirements that all applicants for permits and licenses
to sell alcoholic beverages must satisfy. Included in the
criteria are the requirements that the proposed location be a
proper and suitable one, see S.C. Code Ann. §
61-4-520(6)-(7), and that the proposed permittee be a person of
good moral character who is a fit person to sell beer and wine,
see S.C. Code Ann. §§ 61-2-100(D), 61-4-520(1),
61-4-540(2).
4. Although
“proper location” is not statutorily defined, broad
discretion is vested in the trier of fact to determine the fitness
and 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).
5. The
determination of suitability of location is not necessarily a
function solely 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 v. Allen, 287 S.C. 324,
338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage
Control Comm’n, 276 S.C. 138, 276 S.E.2d 308
(1981).
6. However, without
sufficient evidence of an adverse impact on the community, a permit
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).
7. In making a
decision in this matter, this Court is constrained by the record
before it and the applicable statutory and case law. Here,
Petitioner’s business meets all of the statutory criteria
enacted by the South Carolina General Assembly for the issuance of
a beer and wine permit, and there has not been a sufficient
evidentiary showing that the location in question is unsuitable for
the sale of beer and wine for on-premises consumption at
Petitioner’s pool hall or that the issuance of the permit in
question would create problems in or have an adverse impact upon
the surrounding community. In particular, although this Court
is respectful of Mr. Kyzer’s opposition to Petitioner’s
application, his concerns are simply too speculative and
generalized to support the denial of Petitioner’s application
for the location in question. Further, while
Petitioner’s criminal arrest record causes this Court some
pause, Petitioner has resolved those charges to the satisfaction of
the Department and the Aiken County Sheriff’s Office, and
this Court will likewise grant Petitioner the benefit of the doubt
in this matter. However, Petitioner should not take the
responsibilities associated with a beer and wine permit lightly,
including the responsibility to maintain the personal character and
fitness necessary to hold such a permit. Therefore, I find
that Petitioner may be permitted for the sale of beer and wine at
his establishment, but only so long as his criminal record remains
clear from this point forward.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above,
IT IS HEREBY ORDERED that the Department shall
GRANT Petitioner’s application for an on-premises beer
and wine permit for the premises located at 1959 Old Augusta Road
in Warrenville, South Carolina, subject to the following
restrictions:
(1) Petitioner, as
stipulated, will not possess or operate any video gaming machines
or other gambling devices on the licensed premises; and,
(2) Petitioner, in order
to demonstrate that he is a suitable person to hold his permit,
must maintain a clear criminal record, with no criminal arrests or
convictions, other than for minor traffic offenses, from the date
of this Order.
These restrictions are to be considered conditions upon
Petitioner’s permit such that, if Petitioner should fail to
comply with these restrictions, the Department is authorized to
suspend or revoke his permit or otherwise impose an administrative
penalty upon Petitioner.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
November 20,
2006
Columbia, South
Carolina
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