ORDERS:
FINAL ORDER AND DECISION
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). Crystal Lavonya Green, d/b/a The Hill’s Grill & Games (Petitioner or Green)
seeks an on-premise beer and wine permit for its location at 5123 Hwy 38N,
Bennettsville, South Carolina.
Respondent South Carolina Department of Revenue
(Department) denied Petitioner’s application for the permit because of a timely
filed protest by Pastor Wayne Earley (Protestant or Pastor Earley) on behalf of
Sandhills Wesleyan Church.
A
hearing in this matter was held at 10:00 a.m. on Wednesday, December 05, 2007,
at the offices of the Administrative Law Court in Columbia, South Carolina. All
parties appeared at the hearing, along with the Protestant.
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 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-premise beer and wine permit for its location at 5123
Hwy 38N, Bennettsville, 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, Green has not had a permit or license
revoked within the last two (2) years and is of sufficient moral character to
receive a beer and wine permit. Public notice of the application was also lawfully
posted at the location and in a newspaper of general circulation.
5. The Petitioner testified that
it was her belief that the protest in this matter was discriminatory. She
indicated that her establishment had been characterized as “a blight in the
community” before it had opened and that other establishments in the area that
have sought licensure have not been subject to the same scrutiny from the
Protestant. Green further testified that she plans on having a recreational
establishment where patrons will be able to play games and enjoy a hot meal.
She also stated that she has made improvements to her establishment in order to
bring it up to the requisite standards. The hours of operation will be
Monday-Friday, 1:00 p.m. to 10 p.m., and Saturday from 1:00 p.m. to
approximately 12:00 a.m. Green testified that she will manage the proposed
location along with her cousin and a friend. There will be approximately 50
spaces available for parking. There is exterior lighting in the front and rear
of the establishment.
7. Pastor Earley spoke on behalf of Sandhills
Wesleyan Church (Church). Primarily, he introduced evidence refuting the
Petitioner’s contention that the Church was discriminating against the proposed
location. The evidence provided indicated that the Church did in fact protest
other area establishments that sought licensure. Pastor Earley’s protest
centered on his moral and ethical concerns for the Bennettsville community. He
testified that Bennettsville is a poor town, with high rates of unemployment
and drug abuse. Pastor Earley opined that if the license were granted, the
community would suffer because people would spend whatever money they had on
alcohol.
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)
(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. Although cognizant of the Protestants’ concerns, I conclude
that the proposed location is a proper one for granting the permit. I find that the proposed location is suitable for Petitioner
to operate with an on-premises beer and wine permit 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 and wine sales or that the issuance of the permit would have an
adverse impact on the surrounding community.
ORDER
Based upon the above Findings
of Fact and Conclusions of Law, it is hereby:
ORDERED that the
Department resume processing Petitioner's application and issue an on-premise
beer and wine permit to Petitioner upon payment of the proper fees and costs.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
December 5, 2007
Columbia, South Carolina
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