SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007). The petitioner, The Sisyphus Foundation, Inc., d/b/a Sketers Beverages (“Petitioner”), applied for an on-premises beer and wine permit pursuant to S.C. Code Ann. §§ 61-4-500 et seq. for the location at 413 31st Avenue South, Atlantic Beach, South Carolina 29582. Donnell Thompson and Captain Juan Lopez on behalf of the Town of Atlantic Beach Police Department (“Protestants”) filed written protests to the Petitioner’s application.^[1] Respondent South Carolina Department of Revenue (“Department”) denied the application pursuant to S.C. Code Ann. § 61-4-525 (Supp. 2007) due to the receipt of the Protestants’ valid public protests.

After notice to the parties and the Protestants, the court held a hearing on this matter on October 3, 2007. Both parties, Protestant Randy Rizzo (on behalf of the Atlantic Beach Police Department), and Protestant Donnell Thompson appeared at the hearing. Evidence was introduced and testimony presented.

Following the contested case hearing, the court held the matter in abeyance for sixty days to allow the Petitioner and the Protestants the opportunity to come to an agreement regarding appropriate permit conditions. The parties were ultimately unable to reach an agreement, but both parties provided input about conditions they deemed appropriate for the court to impose, based on discussions with the Protestants. The court has taken those suggestions into account in reaching its decision. After carefully weighing all of the evidence, the court finds that the Petitioner’s application for this location should be granted subject to the restrictions detailed below.

ISSUE

The only issue in dispute is the suitability of the location. S.C. Code Ann. §§ 61-4-520(5)-(6) (Supp. 2007); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the court makes the following Findings of Fact by a preponderance of the evidence.

Evidence was presented regarding all of the relevant statutory criteria. Notice of the time, date, place, and subject matter of the hearing was given to all parties and the Protestants.

The Petitioner is a non-profit corporation that will operate a convenience store at the proposed location under the name of Sketers Beverages. The Petitioner’s purpose, as listed in its Articles of Incorporation, is to promote educational activities in the areas of mathematics and science at the secondary and post-secondary levels. In addition, the Petitioner tries to improve conditions in depressed communities and help underprivileged youth.

Mr. William Collins and Ms. Zavia^[2] Collins are the principal members of the business seeking the requested permit and license. Both are over the age of twenty-one. There is no evidence that they are of poor moral character, and they have never had a permit or license to sell beer, wine, or liquor revoked.

The Petitioner seeks an on-premises beer and wine permit for the location at 413 31st Avenue South, Atlantic Beach, South Carolina 29582. The proposed location is inside the municipal limits of Atlantic Beach. Notice of the application was lawfully posted at the location and published in a newspaper of general circulation. The location had previously been operating for approximately twenty-five years with a permit under the name of Sketers Beverages by a former local public official of Atlantic Beach, with no protests. The area in the vicinity of the proposed location contains businesses such as motels and clubs. However, there are residential apartments adjoining the proposed location, and other residences are located nearby. Parking at the proposed location is adequate.

The area immediately surrounding the proposed location has experienced significant problems with safety and illegal activity. Many of these problems take place around the apartments adjoining the proposed location and involve the tenants who reside there.

The Protestants testified to various concerns with the proposed location. Chief Juan Lopez filed a public protest on behalf of the Police Department. He opposed the location due to the number of complaints the Sheriff’s Department was receiving and the illegal activity in the area. At the hearing, Acting Chief Randy Rizzo testified that there have been multiple incidents at the address of the proposed location, although they involve the tenants living in the adjacent apartments, and not the store itself. Rizzo testified that there have been 82 dispatched calls to the location and several incident reports involving gangs and illegal drugs. In addition, four of the six residents in the adjoining apartments have been arrested for narcotics.

Protestant Darnell Thompson reiterated Rizzo’s concerns regarding drug sales at the proposed location.

LAW

Based upon the foregoing Findings of Fact, the court concludes the following as a matter of law.

1. Jurisdiction

Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[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). 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).

2. Suitability of Location

a. Generally

Section 61-4-520 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. See §§ 61-4-520(5)-(6).

b. Factors in Determining Proper Location

“Proper location” is not statutorily defined, but 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). 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, 326, 338 S.E.2d 335, 337 (1985); Palmer, 282 S.C. at 249, 317 S.E.2d at 478 (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)). The determination of suitability of location is not necessarily solely a function 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, 287 S.C. at 326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276 S.E.2d at 308. Further,

a liquor license or permit may be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.

48 C.J.S. Intoxicating Liquors § 168 at 366 (2004).

Other factors may be considered when determining whether a location is proper. For example, although the General Assembly did not provide absolute statutory distance requirements for beer and wine permits as it did for liquor licenses, the proximity to residences, churches, schools, and playgrounds may be considered for beer and wine permits. S.C. Code Ann. § 61-4-520(6); Smith, 258 S.C. at 504, 189 S.E.2d at 301. Therefore, the decision as to whether the proximity is improper for a beer and wine permit must be made on a case-by-case basis resting upon the peculiar facts of each permit request.

Additionally, consideration can be given to the impact the issuance of the permit will have on law enforcement. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451, 211 S.E.2d 243 (1975). Evidence that the granting of a permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm’n, 308 S.C. 160, 162, 417 S.E.2d 555, 557 (1992). Denial is appropriate where the public areas surrounding the proposed location have been the source of constant law enforcement problems or significant problems with public intoxication. Roche, 263 S.C. at 451, 211 S.E.2d at 243. Another pertinent factor is whether police have been summoned to the scene on prior occasions when licensed to another party. Schudel, 276 S.C. at 141-42, 276 S.E.2d at 309-10. It is relevant whether the location is near other locations that have either been a constant source of law enforcement problems or are locations where young people congregate and loiter. Palmer, 282 S.C. at 250, 317 S.E.2d at 478.

Similarly, consideration can be given to whether the location is heavily traveled or creates a traffic danger. Id. Furthermore, whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past is a relevant factor. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973) (“The record is devoid of any showing that the location is any less suitable for the sale of beer now than during the prior five (5) year period [when it was operated by a different owner].”). Finally, a valid consideration is whether the surrounding area is substantially commercial. Id.; Byers v. S.C. Alcoholic Beverage Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

Without sufficient evidence of an adverse impact on the community, a permit must not be denied if the statutory criteria are satisfied. The fact that the issuance of a permit is protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 166 (2004). Moreover, the denial of a permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested permit consists entirely of opinions, generalities, and conclusions not supported by the facts. Taylor, 261 S.C. at 171, 198 S.E.2d at 802.

c. Conclusions

After carefully weighing the evidence and applying the law as discussed above, the court finds the proposed location to be suitable as long as certain conditions are met. The evidence clearly shows that the location has had significant problems with crime and violence in the past, but that no incident can specifically be attributed to the store itself. The court finds, based on the evidence presented, that such restrictions are necessary to ensure that the location will have adequate police protection and will not endanger or disturb the community.

The proposed location is not within 500 feet of any church, school, or playground, although it is adjacent to some apartments and close to other residences. See S.C. Code Ann. § 61-4-520(6) (Supp. 2007); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Byers v. S.C. Alcoholic Beverage Control Comm’n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991) (holding that proximity to a residence is by itself sufficient to support a finding of unsuitability and denial of a permit). In addition, the location had previously been operating for approximately twenty-five years under a permit with no conditions imposed, and there were no protests.

Thus, the court finds that for the location to remain a suitable one, the Petitioner must: (1) increase lighting around the store and parking area, especially on the back of the store where the attached apartments are located; (2) conduct background checks on current and potential tenants, refuse to rent to anyone with a criminal history of any type of drug/narcotic activity, and take reasonable measures to evict current tenants with serious criminal records; (3) permit law enforcement to come onto the store premises and into the parking lot to enforce state and municipal laws; and (4) post signs against loitering, drug usage, and other illegal activity; and (5) close the store no later than midnight between April 1 and October 31, and close no later than 9:00 pm between November 1 and March 31; and (6) maintain the current fence around premises and the chain across the drive that is used to prevent unauthorized vehicles from entering the parking lot.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above, the court finds that, with the above-noted restrictions, the Petitioner meets all of the statutory requirements for the renewal of an on-premises beer and wine permit and liquor by the drink license. It is therefore

ORDERED that the Department shall GRANT Petitioner’s application for an on-premises beer and wine permit for the premises located at 413 31st Avenue South, Atlantic Beach, South Carolina 29582 in accordance with S.C. Code Ann. § 61-2-80, § 61-4-540, and § 61-4-520, subject to the Petitioner’s entering a written agreement with the Department requiring the Petitioner to comply with the conditions detailed above. Violation of any of the above-listed conditions shall be deemed a violation of the permit and license.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

January 10, 2008

Columbia, South Carolina