SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-1310 and 12-60-1320 (Supp. 1997) upon the application of Petitioner for an on-premises beer and wine permit at 4920 State Highway 215 South, Jenkinsville, South Carolina (AI #121125), filed with the South Carolina Department of Revenue ("DOR"). Protests were filed alleging that the proposed location is unsuitable. The matter was transmitted to the Administrative Law Judge Division, and a contested case hearing was held on November 17, 1998. Upon review of the relevant and probative evidence and applicable law, I find that the proposed location is a suitable one, and the permit is granted.

By a preponderance of the evidence, I find:

Notice of the time, date, place and subject matter of the hearing was given to the parties and protestants.

Larry C. Ziegenfus is the applicant for an on-premises beer and wine permit for a location at 4920 State Highway 215 South, Jenkinsville, South Carolina, having filed an application with DOR, AI #121125.

The proposed location is an improved parcel in the unincorporated community of Monticello, near the Town of Jenkinsville, in rural Fairfield County, South Carolina, at the intersection of S.C. Highway 215 and Old Highway 99 (a/k/a Free's Creek Drive).

The proposed location will operate primarily as a general convenience store and short-order grill, selling fast food, snacks, ice, bait and tackle, etc.

The proposed location has a long history over several decades as a commercial establishment.

The proposed location has been vacant for the past four to five years, but it has been operated as a convenience store and grill licensed to sell beer and wine for on-premises consumption for several years by various past owners.

Petitioner purchased the proposed location in April of 1998 and has made significant improvements and renovations to the structure and grounds.

The proposed location will not be open for business any night after 10:00 p.m.

The proposed location has two apartments above the store on the second floor.

Petitioner will maintain primary control and management of the business at the proposed location.

The area surrounding the proposed location is a mixture of rural and residential properties.

The proposed location is located approximately one-half mile from Lake Monticello.

There are three other licensed locations within five miles of the proposed location, two of which are within two miles.

Monticello United Methodist Church is located approximately 1,162 feet from the proposed location.

No schools or playgrounds are in close proximity to the proposed location.

The nearest inhabited residence is located approximately 395 feet from the proposed location.

Protests to the issuance of the permit are based upon allegations of past problems with loitering, littering, and parking, when the location was operated by previous owners; and protestants' fear that issuance of the permit will cause new loitering, littering, parking, and safety problems in the area.

The testimony of those opposing the permit consists primarily of opinions, generalities, and speculative conclusions not supported by facts.

There is no indication that Petitioner will allow any of the adverse activities complained of to occur under his management of the proposed location.

The proposed location does not have a history of law enforcement problems.

Petitioner had no management control or ownership interest in the proposed location prior to his purchase of the property in 1998.

For approximately four years, just prior to the proposed location becoming vacant, former owner Carol Tolen resided in the upstairs apartment, and the downstairs portion was operated by a tenant as a bait and tackle shop.

There were no safety or crime problems at the location during Ms. Tolen's ownership.

During its operation by the various previous permittees, no ABC violations were ever cited at the proposed location.

Except for the protest filed, the South Carolina Department of Revenue would have issued the permit.

Notice of the application appeared at least once a week for three consecutive weeks in the Winnsboro Herald-Independent and was posted at the location for fifteen days.

The applicant is of good moral character.

The Petitioner is over the age of twenty-one.

The applicant is a legal resident of the United States; has been a resident of this State for at least thirty days before the date of application; and has maintained his principal place of abode in this State for at least thirty days before the date of application.

Petitioner has not been convicted of a felony within ten years of the date of application.

Petitioner has never had a beer or a wine permit revoked.

The applicant is a suitable person to hold an on-premises beer and wine permit.

The granting of the beer and wine permit will not negatively affect the surrounding community.

The location is suitable for the issuance of an on-premises beer and wine permit.

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

The Administrative Law Judge Division has subject matter jurisdiction over contested cases concerning the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260 (Supp. 1997); §§ 1-23-310 et seq. (1986 & Supp. 1997); and §§ 12-60-10 et seq. (Supp. 1997).

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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).

The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154, 157 (1996), citing McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

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 the permit was protested does not serve as a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

Petitioner meets the statutory requirements set forth in S.C. Code Ann. § 61-4-520 (Supp. 1997) to hold a beer and wine permit.

When the relevant testimony of those opposing the permit consists of opinions, generalities, and conclusions unsupported by fact, the denial of a permit on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). Such unsupported allegations form an insufficient basis for denial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

Given the rural nature of the surrounding area and the long history of the proposed location as a relatively trouble-free commercial establishment and licensed location, the proposed location is a suitable one for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1997).

Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue an on-premises beer and wine permit to Petitioner for a location at 4920 State Highway 215 South, Jenkinsville, South Carolina.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

December 29, 1998

Columbia, South Carolina