ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2006), 61-2-260 (Supp. 2006), and 61-4-525 (Supp. 2006). F&R of Santee, L.P., d/b/a Waters Way Market (“Petitioner”), seeks an on-premises beer and wine permit for its location at 12834 Highway 260, Manning, South Carolina (“location”). A protest to the application was filed with the South Carolina Department of Revenue (“Department”). Because of the protest, the hearing was required.
A hearing in this matter was held on August 7, 2007 at the offices of the ALC in Columbia, South Carolina. Both parties and Protestant Jimmy J. Eldreth appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for an on-premises beer and wine permit should be granted with restrictions.
FINDINGS OF FACT
Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks an on-premises beer and wine permit for its location at 12834 Highway 260, Manning, Clarendon County, South Carolina; it is located outside the city limits.
2. F&R of Santee, L.P., d/b/a Waters Way Market is a limited partnership in good standing with the South Carolina Secretary of State. It has a reputation for peace and good order in the community.
3. Raymond Joseph Lewis is a General Partner in F&R of Santee, L.P. and will operate the location. Mr. Lewis is over the age of twenty-one (21) and of good moral character. He is a legal resident of the State of South Carolina and has maintained his principal place of abode in this state for at least thirty (30) days prior to making this application. Additionally, he has never had a permit or license to sell beer, wine or alcoholic beverages suspended or revoked.
4. Notice of the application was lawfully posted at the location and in a newspaper of general circulation.
5. The location currently operates as a convenience store and is permitted for the sale of beer and wine for off-premises consumption. Its hours of operation are from 7:00 a.m. to 7:00 p.m., Monday through Saturday, and from 7:00 a.m. to 2:00 p.m. on Sunday.
6. There is a kitchen inside the location and seating for approximately 32 people. Currently, only breakfast and lunch are served at the location. However, the kitchen stays open until about 6:00 p.m., Monday through Saturday. If the on-premises permit is granted, Petitioner intends to stay open until 9:00 p.m. and serve dinner. The location employs three different cooks and one waitress.
7. There are no pool tables inside the building at the location. Also, there is no live music or karaoke. There are several picnic tables outside the location however.
8. Mr. Lewis’ also owns a retail liquor store next door to the location. He operates it from 9:00 a.m. to 7:00 p.m. each day. Mr. Lewis’ wife operates the convenience store each day. There have been no alcohol related violations at the location or the retail liquor store next door.
9. Protestant Jimmy J. Eldreth, the full-time minister of Santee Baptist Church, filed a protest to the application and testified at the hearing. Santee Church has approximately 254 members and holds church services on Sunday mornings and evenings, and choir practice on Wednesday evenings. Protestant Eldreth is against the sale and consumption of alcohol. However, his primary concern is the proximity of the location to the church. He has had problems with parking, noise and litter from a restaurant located on the other side of the church, Casa di Pasta, and is concerned that if the permit is granted, he and the church will experience additional problems stemming from the sale and consumption of beer and wine on-premises at the location.
10. The location is approximately 639 feet from the church , and Protestant Eldreth lives directly behind the church. The church is separated from the location by a vacant building, New Dawn Salon, a mobile home and a residence. There are other residences in the vicinity but no other protests to the application were filed.
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. 2006) 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. 2006) grants the Administrative Law Court the responsibility to determine contested cases matters governing alcoholic beverages, including beer, wine and liquor.
3. S.C. Code Ann. § 61-4-520 (Supp. 2006) sets forth the requirements for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one.
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, 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); See 48 C.J.S. Intoxicating Liquors § 166 (2004).
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. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2006) authorizing the imposition of restrictions on permits, provides:
Any written stipulation and/or agreement which is voluntarily entered into by an applicant for a permit or license between the applicant and the Department, if accepted by the Department, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the permit or license and shall have the same effect as any and all laws and any and all other regulations pertaining to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute sufficient grounds to revoke said license.
10. 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. 2006).
11. With the restrictions set forth below, I find that the location is suitable for the issuance of an on-premises beer and wine permit. Petitioner currently operates a convenience store at the location which is permitted for the sale of beer and wine for off-premises consumption, and Mr. Lewis operates the retail liquor store next to the location. There have been no alcohol related violations at either establishment. Although Protestant Eldreth’s primary concern is the proximity of the permitted location to the church, the location is over 600 feet away from the church and in excess of the statutory requirement. Further, there are no schools or playgrounds within 500 feet of the location. Protestant’s concerns are also based in part upon a fundamental opposition to alcohol, which does not provide a sufficient basis on which to deny the permit. In addition, problems with parking, noise and litter that he has experienced in the past have not been related to the activities at the location, but rather to another location.
It appears that Petitioner meets all statutory requirements for the issuance of an on-premises beer and wine permit. I conclude that the location would not have an adverse impact on the surrounding community and is suitable for an on-premises beer and wine permit as long as it conforms to the restrictions set forth below.
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 submitted by F&R of Santee, L.P., d/b/a Waters Way Market for its location at 12834 Highway 260, Manning, South Carolina is GRANTED contingent upon Petitioner signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:
RESTRICTIONS
1. Petitioner and its employees will, at all times, prohibit loitering and the consumption of beer, wine, or alcoholic beverages outside of the building at the location. Consumption of beer and wine is limited solely to the indoor portion of the building at licensed location.
2. Petitioner will ensure that litter on the outside of the premises is collected and removed daily.
IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the permit and may result in a fine, suspension, or revocation of the permit.
AND IT IS SO ORDERED.
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Marvin F. Kittrell
Columbia, South Carolina Chief Administrative Law Judge |
