South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Thomas H. Wingard, d/b/a The Caddy Shak vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Thomas H. Wingard, d/b/a The Caddy Shak
381 Pilgrim Church Road, Lexington, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0210-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For the Respondent: Excused

For the Protestants: Pro Se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2003), § 61-4-520 (Supp. 2003), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003), for a contested case hearing. Thomas H. Wingard seeks an on-premise beer and wine permit and restaurant sale and consumption license for “The Caddy Shak,” a location currently under construction to be a restaurant and bar. A hearing was held in this matter on August 17, 2004, at the offices of the Administrative Law Court in Columbia, South Carolina.


FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:

1.Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Department, and the Protestants.

2.The Petitioner, Thomas H. Wingard, seeks an on-premise beer and wine permit and restaurant sale and consumption license for “The Caddy Shak” located in Lexington County at 381 Pilgrim Church Road, Lexington, South Carolina. The Petitioner is the sole proposed owner of this business. Though the Petitioner is building a “par 3” golf course, “pro shop” and a restaurant at the location, construction of the restaurant has not been fully completed.

3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2003) concerning the residency and age of the applicant were properly established. Furthermore, Mr. Wingard has not had a permit or license revoked within the last two (2) years and public notice of the application was lawfully posted both at the location and in a newspaper of general circulation. The Petitioner also has no criminal record and is of sufficient moral character to receive a beer and wine permit and a sale and consumption license.

4.The proposed location is not unreasonably close to any church, school or playground.

5.The proposed location is in a rural area that is mostly surrounded by farm land. However, there are residences in the vicinity of the location. Protestant Sons testified her home is located approximately ½ mile from the proposed location and Protestant Wingard testified her home is located approximately three blocks from the proposed location. Footnote

The Protestants object to the Petitioner receiving a permit and license because of the danger that will be created by traffic exiting the proposed location. They testified that there is “a lot” of traffic and no traffic light in the area that the patrons of the location would be utilizing when exiting from the location onto Pilgrim Church Road. Furthermore, there is a curve in the roadway approximately two hundred (200) yards from where the Petitioner’s patrons would exit onto Pilgrim Church Road. However, the evidence presented did not establish that there is an existing traffic danger in the vicinity of the proposed location or that the proposed location is in a unique area that would presumably create a traffic danger. In particular, there was no evidence of a high incident of collisions in the area or evidence to establish that the curve the Protestants referenced has any extraordinary features that would establish a traffic hazard.

The Protestants also expressed concern over the possibility that intoxicated drivers leaving the proposed location could endanger the residents in the area. However, the lawful sale of beer, wine and alcohol has been approved by our General Assembly. With that approbation comes the inherent danger that individuals may drive intoxicated. If this location was denied a permit and license because of a general concern of intoxicated driving by the Petitioner's patrons without any direct evidence supporting those fears, then that logic must be applicable in all license and permit applications. Since the above unlawful act could occur as the result of the approval of virtually every beer and wine permit or sale and consumption license, no permit or license would ever be granted in South Carolina. Footnote

6.The Protestants’ arguments appear to be based on a sincere concern for this area of Lexington County. However, the Protestants’ evidence did not establish that this business would change the integrity of the neighborhood or create an overall adverse impact on the community if the Petitioner is granted a permit and license. In order to deny this permit or license, direct evidence of an adverse impact on the community is necessary and, in particular, that the operation of the location will create a traffic hazard. Though the Protestants’ evidence raises the “potential” that traffic will be further congested as a result of the Petitioner’s business, the evidence did not establish that the granting of the permit or license themselves will meaningfully contribute to that congestion or create a traffic hazard for the community. Nevertheless, the area is currently predominately residential in nature. Consequently, operation of the business as a bar rather than a restaurant would change the integrity of the neighborhood and create an overall adverse impact on the community. Therefore, I find that the proposed location is suitable for an on-premise beer and wine permit and a restaurant sale and consumption license if operated as described in this decision. Operation of the proposed location in any other manner than that approved within this Final Order and Decision certainly presents a potential adverse impact on the community. Finally, since the location has yet to be completely constructed, the location will have to undergo a final inspection prior to opening.


CONCLUSIONS OF LAW

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

1.S.C. Code Ann. § 1-23-600 (Supp. 2003) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Additionally, S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2.S.C. Code Ann. § 61-4-520 (Supp. 2003) sets forth the requirements for the issuance of a beer and wine permit. Section 61-4-520 generally provides that the Court may consider whether the proposed place of business is a “proper” location to be permitted and, in particular, the proximity of the proposed location “to residences, schools, playgrounds, and churches.”

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. 2003) are met. That section requires that a mini-bottle license be granted only to a bonafide business engaged in either the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not only must the principals and applicant be of good moral character but the business must also have a reputation for peace and good order.

S.C. Code Ann. § 61-6-20(2) (Supp. 2003) sets forth:

‘Bona fide engaged primarily and substantially in the preparation and serving of meals’ means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

In order to meet the requirements of Section 61-6-20(2), the location must also meet the requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003). Additionally, Section 61-6-1820 also 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. 2003).

4.Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The determination of suitability of 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, 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, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).

“A liquor license or permit may properly be 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). Nevertheless, 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).

5.I conclude the Petitioner meets the statutory requirements for an on-premise beer and wine permit and a restaurant sale and consumption license for this location.


ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Department resume processing the Petitioner's application and issue an on-premise beer and wine permit and a restaurant sale and consumption license to the Petitioner upon approved completion of the construction of the location and payment of the proper fees and costs.

AND IT IS SO ORDERED.


____________________________

Ralph King Anderson III

Administrative Law Judge


September 8, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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