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. §§ 1-23-310 et seq. (2005), 61-2-260 (Supp. 2005), and 61-4-525 (Supp. 2005) for a contested case hearing. Lizzie Darnell Green (Petitioner) seeks an on-premises beer and wine permit for Tookie Doo Quick Stop located at 1112 Cherokee Boulevard, Elgin, South Carolina (location). A protest to the application was filed with the South Carolina Department of Revenue (Department). Because of the protest, a hearing was required.
A hearing in this matter was held before me on August 31, 2006 at the ALC in Columbia, South Carolina. Both parties and the Protestant appeared at the hearing. Evidence was introduced and testimony was taken. After carefully weighing all the evidence, I find and conclude that Petitioner’s request for an on-premises beer and wine permit is granted.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and further 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 timely given to all parties and Protestants.
2. Petitioner seeks an on-premises beer and wine permit for Tookie Doo Quick Stop, which is located at 1112 Cherokee Boulevard, Elgin, South Carolina.
3. Petitioner is the sole owner of Tookie Doo Quick Stop.
4. Petitioner is over the age of twenty-one (21). She is a legal resident of the State of South Carolina and has maintained her principal place of abode in this State for at least thirty (30) days prior to making this application. She is of good moral character and has never had a permit or license revoked. Notice of the application was also lawfully posted both at the location and in a newspaper of general circulation.
5. The location is located approximately 6 miles from the center of Elgin along the Richland/Kershaw County line.
6. The location operates as a convenience store. Its hours of operation are from 10:00 a.m. to 10:00 p.m. Monday through Saturday. The location is closed on Sunday. Petitioner sells groceries and food items such as hot dogs and sausage dogs inside the location.
7. The building at the location is approximately 15 by 15 feet. There are only two tables inside and approximately ten chairs. There have never been more than approximately eight people inside the location at any one time. The location’s clientele mostly consists of middle-aged individuals.
8. There is no jukebox and there are no pool tables or game machines inside the location. Petitioner only has a small radio inside the location and does not intend to have any other music inside or outside of the location other than the radio.
9. Petitioner operates the location with her husband, Larry Green. Petitioner is a cosmetologist and also works at Hair Connections in Elgin from 6:00 a.m. to 9:30 a.m. before opening the store. Petitioner and her husband live within three miles of the location.
10. There are no churches, schools, or playgrounds in close proximity to the location.
11. Several residences are located near the location, with the closest residence being next door to it. However, none of those residents protested the application.
12. Sheriff Steve McCaskill of the Kershaw County Sheriff’s Office filed a protest against the application. Chief Deputy James Earl Thornley appeared at the hearing and offered testimony on behalf of the Kershaw County Sheriff’s Office. Chief Deputy Thornley mainly expressed concern for law enforcement’s ability to respond to any incidents which might occur at the location. He is concerned that due to the location of the store, deputies may not be able to respond quickly to any problems there.
13. During a shift there are six deputies on duty who must patrol a total of approximately 740 square miles. The county is divided in half by the Wateree River and three deputies are on duty in each of the two areas at one time. There is also a police substation approximately six miles away from the location in Elgin.
14. When under previous ownership, numerous alcohol violations occurred at the location. Those violations occurred approximately six to seven years ago. However, since Petitioner began operating the location there have been no further alcohol violations or law enforcement problems.
15. Petitioner applied for an on-premises beer and wine permit for this location in 2005. In an order dated July 20, 2005, Administrative Law Judge Ray N. Stevens denied the application finding the location unsuitable for the issuance of an on-premises beer and wine permit. See Lizzie D. Green d/b/a Tookie Doo Quick Stop v. S.C. Dep’t of Revenue, 05-ALJ-17-0180-CC (July 20, 2005). Judge Stevens’ denial was based in part upon the number of alcohol violations which occurred at the location when it was under different ownership, the fact that no other locations in the immediate area have an on-premises beer and wine permit, and the possible strain that granting the permit would place on law enforcement.
16. Sine the 2005 order, Petitioner was granted a permit for the sale of beer and wine for off-premises consumption. Petitioner has held and operated with that permit for approximately one year without incident.
17. There are also other locations nearby that are licensed for the sale of beer and wine for on-premises consumption, including the Cherokee Quick Stop and a Mexican restaurant in Elgin.
18. I find that the proposed location is suitable for the issuance of an on-premises beer and wine permit.
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 (2005) 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. 2005) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 2005) sets forth the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one. See id.
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, 417 S.E.2d 586 (1992); see also Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (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, 471 S.E.2d 154 (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, supra. 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. Id.
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 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).
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, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9. The Department may seek revocation or suspension of permits for the sale of beer and wine “on its own initiative or on complaint signed and sworn to by two or more freeholders resident for the preceding six months in the community in which the licensed premises are located or by a local peace officer, all of whom are charged with the duty of reporting immediately to the department a violation of the provisions of Section 61‑4‑580….” S.C. Code Ann. § 61-4-590 (Supp. 2005).
10. The Department argues that the current action is barred by the doctrines of res judicata and collateral estoppel, and therefore should be dismissed, based upon the fact that Petitioner made a previous application for an on-premises beer and wine permit at this location which was denied by another Administrative Law Judge.
Res judicata bars subsequent actions by the same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between the parties. Plum Creek Development Co., Inc. v. City of Conway, 334 S.C. 30, 34, 512 S.E.2d 106, 109 (1999). To establish res judicata, three elements must be established: (1) identity of the parties, (2) identity of the subject matter, and (3) adjudication of the issue in the former suit. Id. The doctrine of collateral estoppel is “an affirmative defense barring a party from relitigating an issue determined against that party in an earlier action.” Black’s Law Dictionary, Seventh Ed., 1999. This doctrine is founded on the principles of finality and efficiency, that is, a decision on a particular issue should stand unless some compelling countervailing consideration necessitates relitigation. Beall v. Doe, 281 S.C. 363, 370, 315 S.E.2d 186, 190 (Ct. App. 1984).
Although the suitability of the location was litigated and decided in the previous case before Judge Stevens, I find that the present action should not be barred by res judicata or collateral estoppel. In Nelson v. QHG of South Carolina, Inc.,, 354 S.C. 290, 314-315, 580 S.E.2d 171, 184 (Ct. App. 2003), aff’d in part, rev’d in part on other grounds, 362 S.C. 421, 608 S.E.2d 855 (2005), the South Carolina Court of Appeals held that “even when the elements of res judicata and collateral estoppel have been met, they will not be rigidly or mechanically applied, and the application of the doctrines may be precluded where unfairness or injustice results, or public policy requires it.” I find that the application of res judicata or collateral estoppel would serve an injustice on the Petitioner in this case. In the previous case, the denial was based upon the possible strain on law enforcement, the lack of other businesses in the immediate area possessing an on-premises beer and wine permit and the alcohol related violations that occurred under the previous owners. It was believed that the clientele would remain the same, therefore leading to the possibility of the same violations occurring, even under new ownership.
Since July 2005, Petitioner has experienced a substantial change in circumstance. She has not had any violations or law enforcement problems at the location and she has operated for approximately a year with an off-premises beer and wine permit. Petitioner has also changed the location’s hours of operation from those of the prior owner. Furthermore, a long enough period of time has passed to allow for a change in clientele.
I find and conclude that the location is suitable for the issuance of an on-premises beer and wine permit and the issuance of the permit would not have an adverse impact on the community. Furthermore, Petitioner meets all of the statutory criteria for the issuance of an on-premises beer and wine permit. Accordingly, I conclude that Petitioner’s application for an on-premises beer and wine permit must be granted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the application for an on-premises beer and wine permit by Lizzie Darnell Green for her location at 1112 Cherokee Blvd, Elgin, South Carolina is GRANTED.
AND IT IS SO ORDERED.
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Marvin F. Kittrell
October 19, 2006 Chief Administrative Law Judge
Columbia, South Carolina
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