SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2006) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2006). OBC, Inc., d/b/a The Orient (“OBC”) seeks an on premises beer and wine permit and restaurant liquor by the drink license for its location at 3229 North Pleasantburg Drive, #D-7, Greenville, South Carolina.

Respondent South Carolina Department of Revenue (“Department”) denied Petitioner’s application for the permit because of timely filed protests by R.H. Patterson, Sr., Ann S. Campbell, and David Yearick.

A hearing on this matter was held at 10:00 a.m. on Thursday, June 25, 2007 at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Mr. Patterson and Mr. Yearick. By letter dated June 23, 2007, Ms. Campbell informed the Court that she would not be able to attend the hearing on the matter.

After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s on premises beer and wine permit and restaurant liquor by the drink license shall 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 the Protestants.

3. The Petitioner seeks an on premises beer and wine permit and restaurant liquor by the drink license for its location at 3229 North Pleasantburg Drive, #D-7, Greenville, South Carolina.

4. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2006) concerning the residency and age of the applicant are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two (2) years. Public notice of the application was also lawfully posted at the location and in a newspaper of general circulation.

5. Pursuant to S.C. Code Ann. § 61-3-440 (Supp. 2006), there are no churches, schools, or playgrounds within the minimum required distance of the location.

6. Mr. Bronco Manley testified on behalf of the Petitioner in this matter. Mr. Manley serves as the general manager for the location at issue. He testified that there are other establishments in the area that serve alcohol. Furthermore, Mr. Manley stated that the location is a food service establishment and as such will be serving food and alcohol in a ratio of 90 to 10 percent, respectively. Mr. Manley also discussed the training of his employees. Specifically, all employees are trained to address alcohol related issues as they arise during daily operations.

7. As evidenced by the Petitioner’s exhibits, there is a strong police presence in the area. The hours of operation for the establishment are 5:00 p.m. to 10:00 p.m. on weekdays and 5:00 p.m. to 11:00 p.m. on weekends. OBC owns and operates a similar establishment in downtown Greenville. There have never been any complaints relating to the operation of its downtown establishment.

8. Mr. Patterson’s objection to the issuance of a permit in this matter primarily centers on his concern for the general welfare of the surrounding community. Additionally, Mr. Patterson believes that there are already too many locations in the area that serve alcohol. Mr. Patterson also expressed concern over the high volume of permitted locations in relation to the number of police officers who are available to monitor the area.

9. Mr. Yearick’s objection primarily arises out of his personal experience with alcohol. Specifically, Mr. Yearick testified that multiple members of his family have been afflicted in one way or another by alcohol. Furthermore, Mr. Yearick expressed concern about the number of locations in the area that already serve alcohol. Lastly, Mr. Yearick indicated that he is worried about the safety of school children who attend a nearby Christian school.

10. In its closing arguments, the Department strongly recommended the use of outside training for Petitioner’s general management and supervisory staff.

CONCLUSIONS OF LAW

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

1.         S.C. Code Ann. § 1-23-600 (Rev. 2005) 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. 2004) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

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.         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). 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, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

4.         S.C. Code Ann. § 61-4-520 (Supp. 2006) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. S.C. Code Ann § 61-4-520(6)-(7) (Supp. 2006).

5.         Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or 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).

6.         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).

7.         In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

8. 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. Alcoholic Beverage Control 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 or suitability of the proposed business location of an applicant for permits and licenses to sell alcoholic beverages using broad but not unbridled discretion. Byers v. S.C. Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

9. 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).

10. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding an on premises beer and wine permit and restaurant liquor by the drink license. Although cognizant of the Protestants’ concerns, I conclude that the proposed location is a proper one for granting the permit and license. I find that the proposed location is suitable for Petitioner to operate with an on premises beer and wine permit and restaurant liquor by the drink license and that Petitioner’s operations will not be detrimental to the welfare of the surrounding community.

11.       In reaching a decision in this matter, this tribunal is constrained by the record before it and by the applicable statutory and case law. Here, Petitioner meets all of the statutory and regulatory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit. There has not been a sufficient evidentiary showing that the location is unsuitable for Petitioner’s proposed beer, wine, and liquor sales or that the issuance of the permit and license would have an adverse impact on the surrounding community.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department resume processing Petitioner's application and issue an on premises beer and wine permit and restaurant liquor by the drink license to Petitioner upon payment of the proper fees and costs.

IT IS FURTHER ORDERED that, within six (6) months of the date of this Order, all general managers and supervisory staff employed at Petitioner’s location at 3229 North Pleasantburg Drive, #D-7, Greenville, South Carolina, shall be required to attend outside training relating to the sale and service of alcohol.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

June 25, 2007

Columbia, South Carolina