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), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007). The Petitioner, Khalsa, LLC, d/b/a El Cheapo #7 (“El Cheapo”), applied for an off-premises beer and wine permit pursuant to §§ 61-4-500 et seq. for the location at 1630 Longcreek Drive, Columbia, South Carolina 29210. Michelle Sims on behalf of The Park Apartment Homes (“Protestant”) filed a written protest to the Petitioner’s application.[1] Respondent South Carolina Department of Revenue (“Department”) denied the application pursuant to § 61-4-525 due to the receipt of the Protestant’s valid public protest. The Department stated in the Final Agency Determination that it would have granted the permit and license but for the receipt of the public protest.

After notice to the parties and the Protestant, the court held a hearing on this matter on April 7, 2008. Both parties and the Protestant appeared at the hearing. Evidence was introduced and testimony presented. 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 sole issue in dispute is the suitability of the location. §§ 61-4-520(5)-(6).

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 Protestant.

The Petitioner seeks a permit for the retail sale of beer and wine for off-premises consumption for the location at 1630 Longcreek Drive, Columbia, South Carolina 29210. Notice of the application was lawfully posted at the location and was published in a newspaper of general circulation.

Mr. Tony Dhillon (“Dhillon”) is the majority owner of the business seeking the requested permit. Dhillon is over the age of twenty-one. He has never had a permit or license to sell beer, wine, or liquor revoked. He has no criminal record and does not owe the state or federal government any delinquent taxes, penalties, or interest. Dhillon is also involved with other convenience stores in the state that are licensed to sell beer and wine.

The Petitioner seeks the requested permit and license for El Cheapo, a convenience store that sells gasoline. El Cheapo is open seven days a week from 7:00 a.m. until 11:00 p.m. Under prior ownership, this location was previously licensed to sell beer and wine for off-premises consumption without incident for twenty-two years. Further, prior to the hearing El Cheapo held a 120-day temporary permit without incident. Dhillon testified that his employees previously underwent a training program concerning alcohol sales and that upon receipt of this permit he will re-train his employees. He also stated that there are signs throughout the store that state “We I.D.” Further, the store’s cash register permits the store clerk to enter electronically a patron’s date of birth to determine easily whether the patron has reached the legal age to purchase alcohol.

Dhillon testified that since Khalsa, LLC began operating this location it has added flood lights to the premises. Dhillon stated that the location resembles a “baseball field” at night due to the ample exterior lighting. Additionally, with the business’s permission, the Richland County Sheriff’s Department posted a sign at the proposed location which states that it is under the jurisdiction of Richland County and that the Sheriff’s Department has the authority to arrest persons on the premises for loitering. Further, Dhillon testified that he will not permit loitering at the proposed location or the adjoining grassy area, as evidenced by the “No Loitering” signs currently posted there, and that he will keep these areas litter free.

El Cheapo is located outside of the city limits of Columbia on the corner of Longcreek Drive and Cambout. The area in the vicinity of the proposed location is primarily residential consisting of several apartment complexes and a condominium complex. There are no churches, schools, or playgrounds within 500 feet of the proposed location.

Michelle Sims testified concerning the application. Sims is the property manager of The Park Apartment Homes, which is located diagonally across the street from the proposed location. Sims stated she initially filed a protest because the application included a license for a retail liquor store that would be adjacent to the convenience store. However, El Cheapo has since withdrawn the application for a retail liquor store and is solely seeking an off-premises beer and wine permit. Sims expressed that she would be amenable to the off-premises beer and wine permit so long as the applicant remained diligent about preventing loitering, littering, and loud music in the parking lot and the adjacent grassy area. Sims further stated that any problems with loitering and music have direct consequences on The Park Apartment Homes and its residents.

LAW

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

1. Jurisdiction and Review

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. § 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 or license 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). 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 or license application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a permit or license 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 or license to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or 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. Prior to the hearing, the applicant worked with the Richland County Sheriff’s Department to develop proposed conditions to the permit. As a result, the Petitioner consented to conditions being placed on the permit requiring it to prevent loitering, littering, and loud music, as well as maintain current lighting. The Protestant testified that she was satisfied with those conditions as long as the applicant was diligent in upholding them. The court finds, based on those representations and on the evidence presented, that such conditions are necessary to ensure that the location will have adequate police protection and will not endanger or disturb the community.

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 off-premises beer and wine permit. It is therefore

ORDERED that the Department shall GRANT Petitioner’s application for an off-premises beer and wine permit for the premises located at 1630 Longcreek Drive, Columbia, South Carolina 29210 in accordance with § 61-2-80 and § 61-4-540, subject to the Petitioner entering a written agreement with the Department requiring the Petitioner to:

(1) maintain the current exterior lighting;

(2) maintain the signage that indicates that this location is under the jurisdiction of the Richland County Sheriff’s Department;

(3) maintain the “No Loitering” signs;

(4) continue to take reasonable measures to prevent loitering and littering in the parking lot and the adjacent grassy area; and

(5) continue to discourage loud music on the premises.

Violation of any of the above-listed conditions shall be deemed a violation of the permit.

IT IS SO ORDERED.

_____________________________________

PAIGE J. GOSSETT

Administrative Law Judge

April 8, 2008

Columbia, South Carolina