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), §§ 61-6-100 et seq. (Supp. 2003), and §§ 1-23-310 et seq.
(1986 & Supp. 2003) for a contested case hearing. Gerren Antonio Clowney, d/b/a Una Spirits
and Wine (Applicant or Petitioner), seeks a renewal of his retail liquor license.
The Spartanburg County Sheriff’s Office (Sheriff’s Office) and Pastor Cathaye Jones of
Community New Life Church (Church), each filed a protest to the application with the South
Carolina Department of Revenue (Department). Because of the protests, the hearing was
required. The Department filed a Motion to be Excused setting forth that but for the protests it
received, this permit would have been issued. By previous Order, that motion was denied.
A hearing in this matter was held before me on January 11, 2005, at the offices of the
Administrative Law Court in Columbia, South Carolina. Both parties and the Protestants
appeared at the hearing. Evidence was introduced and testimony was given. After carefully
weighing all the evidence, this Court finds that the retail liquor license should be granted.
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.The ALC has personal and subject matter jurisdiction.
2.Notice of the time, date, place and subject matter of the hearing was timely given
to all parties and Protestants.
3.The Applicant, Gerren Antonio Clowney, d/b/a Una Spirits and Wine, seeks a
renewal of his retail liquor license for the premises located at 221 Sibley Street, Suite B,
Spartanburg County, South Carolina (location). He opened the business in November 2004 and
has been operating a liquor store since its opening.
4.Applicant is the sole owner and employee of this business. He lives
approximately two and one half miles from the location.
5.Applicant is over the age of twenty-one. He has been a legal resident of the State
of South Carolina all of his life, and he has maintained his principal place of abode in the State
of South Carolina for the same length of time.
6.Applicant possesses good moral character and has never been convicted of a
crime.
7.Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
8.Applicant has never had a license for the sale of alcoholic liquors or beverages
revoked and does not own or operate any other retail liquor stores.
9.The retail liquor store is located in a small shopping center along with a coin
laundry, a grocery store which sells ethnic foods, and a convenience store that is licensed to sell
beer and wine for off-premise consumption. The shopping center fronts on Sibley Street and is
bounded on one end by Hayne Street and by a railroad track on the other end. Across the
railroad track is a mobile home park. Seminole Drive runs parallel with the railroad track and
separates the Community New Life Church from the mobile home park. The Church is located
on the corner of Seminole Drive and Sibley Street, approximately 560 feet from the location.
See Petitioner’s Exhibit #2.
10.There are no churches, schools, or playgrounds within five hundred feet of the
location.
11.The Sheriff’s Office and Pastor Cathaye Jones of Community New Life Church
protested the application and appeared at the hearing.
12.Eric Boutin, a Sergeant with the Sheriff’s Office, testified that he is in charge of
its records and crime analysis and is its custodian of records. Although he brought no files or
records with him to the hearing, he testified that the area (Zone 31) that the location is in is
considered by the Sheriff’s Office to be a “hot spot” because a lot of crimes occur there. He
noted that although some 20,000 people live in Zone 31, it is mostly an industrial area. He
testified that some 1,004 arrests were made in Zone 31 in 2003. However, he was not able to
give a specific number or percentage of those arrests which were attributed to alcohol
consumption or its effects. He stated that there are other “hot spots” or zones in Spartanburg
County where crime occurs frequently and that crime has existed in Zone 31 for many years with
its primary source related to illegal drug use. He was not able to provide the Court any estimate
of the number of stores that sold liquor in Zone 31. Although the protest letter from the Sheriff’s
Office stated that “many efforts are underway towards reclaiming & revitalizing this area,”
Sergeant Boutin was unable to provide the Court with any information on these efforts.
13.Protestant Cathaye Jones, pastor at Community New Life Church also testified at
the hearing. He has been a full-time pastor at the church for the last fifteen (15) years and has
been a resident and citizen of Spartanburg County for the last fifteen years. His home is
approximately three-to-four minutes driving time from the Church.
14.Pastor Jones testified that the Church is open every day for some type of service
or activity. It conducts an after-school tutoring program for children from kindergarten through
the twelfth grade which approximately thirty (30) children presently attend. The Church is also
beginning an adult Christian Academy for individuals between the ages of seventeen (17) and
one hundred (100). There is a Bible study at the Church on Wednesday and meetings on Monday
and Tuesday. On Sundays the Church has a morning and evening service. The Church has
approximately three hundred (300) members.
15.The convenience store, which is adjacent to Applicant’s location in the shopping
center, has a friendly relationship with the Church. It provides treats for the children and
supports activities at the Church. The convenience store has a permit from the Department to
sell beer and wine for off-premise consumption. X-rated magazines are also sold at the
convenience store. Neither Pastor Jones nor the Church has ever objected to any biannual
renewal of the beer and wine permit at this convenience store. However, Pastor Jones testified
that he and the Church would protest any such renewal in the future.
16.Pastor Jones testified that the Church objects to the issuance of the retail liquor
license because of crime and trash in the neighborhood, and because he doesn’t like the children
at the Church viewing liquor trucks when they deliver liquor to the location. He also testified
that he is against the consumption of alcohol. He was not able to tell the Court of any crime or
litter emanating from the location since it has been opened.
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.
2.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.
3.S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2003) sets forth the general
requirements for determining eligibility for a retail liquor license.
4.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision.
Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of
fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol
permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5.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); see also Doe v. Doe, 324 S.C. 492,
502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of
fact, “has the authority to determine the weight and credibility of the evidence before him”).
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 Woodall v. Woodall,
322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
6.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 any 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).
7.Unless there is 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 licensee 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.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. Rather, they are privileges granted in the exercise of the state’s police power
to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance
of a permit or license, is likewise authorized to revoke or suspend the permit or license for cause.
See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9.It is obvious to the Court that the protests are primarily based upon allegations of
a long history of crime in this neighborhood. No evidence was presented at the hearing that any
problems have occurred at or near the location as a result of Petitioner’s operation of this retail
liquor store. Furthermore, the Court finds the Petitioner to be credible and is impressed with the
manner in which he has operated the liquor store since its opening.
There is no evidence that the operation of this retail liquor store as presently situated will
adversely affect the immediate locale, its citizens, or the public who pass in front of it. No
individuals who live in close proximity to the location appeared at the hearing in opposition to
the issuance of this retail liquor store license. Furthermore, the location is not within five
hundred feet or unreasonably close to any church, school or playground.
Although the Court is concerned with issues such as trash and crime, there has been no
evidence placed in the Record that any crime or littering has occurred as a result of this store
since its opening. Furthermore, the Court also recognizes that the pastor at the Church opposes
the drinking of alcoholic beverages. However, that is not a sufficient reason for this Court to
deny the issuance of a license for the sale of liquor. The sale of liquor is authorized in this State,
and if the location is suitable, then the license must be issued to the applicant. Therefore, the
Court finds that Petitioner meets all the statutory requirements, including suitability, for a retail
liquor store and authorizes the Department to issue the retail liquor license to Petitioner upon the
payment of all required fees.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the renewal application for a retail liquor license by Gerren Antonio
Clowney, d/b/a Una Spirits and Wine, 221 Sibley Street, Suite B, Spartanburg County, South
Carolina is granted; and
IT IS FURTHER ORDERED that the Department resume processing the Petitioner’s
application and issue a retail liquor license to the Petitioner upon payment of the proper fees and
costs.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
February 2, 2005
Columbia, South Carolina |