SC Administrative Law Court Decisions

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of evidence:

1. Petitioner seeks an on premises beer and wine permit for its location at 2913 Nance Street, Newberry, South Carolina.

2. Petitioner is a 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.

3. Notice of the application was lawfully posted at the location, and in the Newberry Observer, on August 10, 17, and 24, 2007, a newspaper of general circulation.

4. Petitioner currently holds an off premises beer and wine permit for a store that is located on Main Street in Newberry, South Carolina.

5. The location is near the intersection of Highway 121 and Nance Street.

6. There are no residences, churches, schools, or playgrounds within five hundred (500) feet of the location.

7. The location’s proposed hours of operation are from 9:00 a.m. to 9:00 p.m., Wednesday through Monday.

8. There will be no loud music or live bands at this location.

9. Petitioner offered to erect a privacy fence along the property line that is shared by the location and the residence of Intervenor.

10. Intervenor Margaret C. Sheppard opposes the issuance of the on premises beer and wine permit due to her concerns about the welfare of the surrounding community. Mrs. Sheppard further objects to the license being issued because of the location and the problem that it would pose through increased traffic.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1. The South Carolina Administrative Law Court has jurisdiction in this

matter pursuant to S.C. Code Ann. §61‑2‑260 (Supp. 2007).

2. The factual determination of whether or not an application is granted or denied is

usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).

3. The applicant has complied with all the provisions of S.C. Code Ann. §61‑4‑520

regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61‑4‑520(6).

4.                  Licenses and permits issued by the State for the sale of beer, wine, and liquor are

not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

5. 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).

6. 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 a beer and wine permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

7. Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a 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 on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8. The Department of Revenue, which is the governmental body charged with

regulating and enforcing violations concerning permits and licenses involving the sale of beer wine and liquor, did not object to the granting of a permit in this case. I find that this location is suitable for the on‑premises sale of beer and wine.

9. Intervenor’s argument is that the location will have an adverse impact on the community by increasing traffic and posing a problem for law enforcement to properly exercise jurisdiction over the area. Intervenor also worries about the proximity of the location to her property as well as the housing projects which are located directly behind her home. Intervenor worries that the patrons that frequent the establishment could potentially trespass on her property and become a nuisance in the future.

Intervenor called as a witness Captain Charles Counts of the City of Newberry, who testified that the location is directly across from a City park. He expressed concern that the park has attracted loiterers and litter has been a problem there. However, there was no evidence that either of these problems were connected with the proposed location. Newberry County Chief Deputy Sheriff Jerry Wright testified that his main concern is highway safety; however, the location is not in the County, but within the Newberry City Limits. “Findings…may never be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it.” Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 443, 458 S.E.2d 76, 83 (Ct. App. 1995). Although Intervenor very strongly advocated her concerns, she failed to satisfy the burden of proof necessary to justify the denial of the permit at this location.

For the reasons above, the Court finds that the Petitioner has met all of the statutory requirements for an on premises beer and wine permit, and authorizes the Department to issue the on premises beer and wine permit.

ORDER

Based upon the above Findings of Fact and Conclusions of Law:

IT IS HEREBY ORDERED that the application for an on premise beer and wine permit by Cesar A. Ramirez, d/b/a Los Amigos, Newberry, South Carolina, must be granted.

AND IT IS SO ORDERED.

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CAROLYN C. MATTHEWS

Administrative Law Judge

April 16, 2008

Columbia, South Carolina