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. 2007) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2007). Atlantic Grocery, d/b/a Atlantic Grocery (“Atlantic” or “Petitioner”) seeks an off-premise beer and wine permit for its location at 302 Atlantic Street, Sumter, South Carolina.
Respondent South Carolina Department of Revenue (“Department”) denied Atlantic’s application for the permit because of timely filed protests by the City of Sumter Police Department and Roger Wheat and Citizens (“Citizens”).
On December 29, 2007, Citizens filed a Motion to Intervene with the Court, citing multiple concerns as grounds for the Motion. Additionally, on January 14, 2008, the City of Sumter Police Department filed a letter with the Court wherein it conveyed its desire to withdraw its protest in this matter.
A hearing in this matter was held at 2:00 p.m. on Wednesday, January 16, 2008, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Citizens.
As a preliminary matter, the Court denied Citizens’ Motion to Intervene because of their failure to serve copies of the same on the parties. See ALC Rule 20 (2007) (“A motion for leave to intervene shall be served on all parties…”).
After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Atlantic’s off-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. Fawaz Abdelhadi (“Abdelhadi”) and Antonia Foster operate the Atlantic as a husband and wife partnership. Atlantic seeks an off-premise beer and wine permit for its location at 302 Atlantic Street, Sumter, South Carolina.
4. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2007) concerning the residency and age of the applicant are properly established. Furthermore, neither partner has had a permit or license revoked within the last two (2) years and both are of sufficient moral character to receive a beer and wine permit. Public notice of the application was lawfully posted at the location and in a newspaper of general circulation.
5. Abdelhadi testified on behalf of Atlantic in this matter. Primarily, Abdelhadi categorized the kinds of items that the proposed location offers and indicated that the location had previously been a grocery store. Further, Abdelhadi stated that he plans on offering different items than the previous establishment and added that he will not have game machines at his store. Adbelhadi testified that the hours of operation will be Monday through Saturday, from eight (8) a.m. to ten (10) p.m., and Sunday from nine (9) a.m. to nine (9) p.m. He also stated that he will not offer entertainment at the proposed location and that there are three outside lights around the establishment which illuminate the immediate area. Abdelhadi stated further that there is also street parking available in the front of the establishment in addition to the approximately 5 parking spaces located on the premises.
6. Abdelhadi is a native of Jordan. He came to the United States in March of 1989 and subsequently to South Carolina in January of 1995. He is categorized as a resident alien under United States law. He has never been convicted of a crime. Abdelhadi has held permits to sell beer and wine in Charleston, Aiken, and in Sumter. He had one violation in Aiken that has since been resolved. Adbelhadi indicated that he will work with the community in an attempt to alleviate any concerns regarding the issuance of this permit.
7. Roger Wheat’s protest centered on his concerns about the community. Mr. Wheat indicated that the immediate area around the proposed location has been subject to multiple incidents of violence and crime. Specifically, Mr. Wheat stated that he has witnessed drug deals and shootings around the proposed location. He stated that this is particularly problematic because the areas surrounding the proposed location are occupied by family oriented establishments, such as a gymnasium and a community center. He fears that further incidents will occur if loitering isn’t controlled around the establishment. Mr. Wheat indicated that some of his concerns would be alleviated if Atlantic took steps to control loitering.
8. Rev. Howard testified briefly in this matter. Primarily Rev. Howard emphasized that he has no problem with the presence of a grocery store but feels that the sale of beer and wine at the proposed location would only exacerbate the problems which currently plague the immediate area. He also expressed concern about the proximity of the proposed location to local family oriented establishments. Lastly, Rev. Howard indicated that he has a good relationship with the police and will call them if he witnesses suspicious activity around the proposed location.
9. Rev. Randolph also testified briefly in this matter. Rev. Randolph indicated that he was disappointed that the City of Sumter Police Department chose to withdraw its protest in this matter. Furthermore, Rev. Randolph stated that he has worked hard to clean up the area. He testified that he objects to licensure because he does no want to offer another opportunity to encourage criminal behavior in the community.
10. In an effort to alleviate some of the concerns raised at the hearing, Atlantic and the Department agreed to the following stipulation: “The permitted will make every reasonable effort to ensure that loitering will not occur on his licensed premises and will post signs indicating that loitering is prohibited.”
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. 2007) 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. 2007) 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. 2007).
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 Atlantic has met its burden of proof in showing that it meets all of the statutory requirements for holding an off-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 off-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, Atlantic 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 off-premise beer and wine permit to Petitioner for its location at 302 Atlantic Street, Sumter, South Carolina upon payment of the proper fees and costs.
IT IS FURTHER ORDERED that if issued, the permit shall be made subject to the stipulation as set forth in “Finding of Facts”, No. 10, above.
AND IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative Law Judge
January 17, 2008
Columbia, South Carolina
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