SC Administrative Law Court Decisions

This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007), 1-23-600(B) (Supp. 2007), 61-2-260 (Supp. 2007), and 61-4-525 (Supp. 2007). Norwood Corner Mart, LLC, d/b/a Norwood Corner Mart (“Petitioner”), seeks an off-premises beer and wine permit for its location at 1446 Poplar Street, #C, Cayce, Lexington County, South Carolina (“location”). A protest to the application was filed with the South Carolina Department of Revenue (“Department”). Because of the protest, the hearing was required.

A hearing in this matter was held on May 7, 2008 at the offices of the ALC in Columbia, South Carolina. Both parties and Protestant Lieutenant Jeffrey Simmons appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for an off-premises beer and wine permit should be granted with restrictions.

FINDINGS OF FACT

Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner seeks an off-premises beer and wine permit for its business located at 1446 Poplar Street, #C, Cayce, Lexington County, South Carolina. The location is inside the city limits of Cayce.

2. Norwood Corner Mart, LLC, d/b/a Norwood Corner Mart, is a limited liability company in good standing with the South Carolina Secretary of State. It has a reputation for peace and good order in the community.

3. Larry Norwood (“Mr. Norwood”) is the sole owner of Norwood Corner Mart, LLC, d/b/a Norwood Corner Mart. Mr. Norwood is over the age of twenty-one (21) and is of good moral character. He is a legal resident of the United States and the State of South Carolina. He has maintained his principal place of abode in this state for at least thirty (30) days prior to making this application. He has never held a permit or license to sell beer, wine or alcoholic beverages.

4. Notice of the application was lawfully posted at the location and in a newspaper of general circulation.

5. The location opened on January 1, 2008 and operates as a convenience store, selling a limited line of groceries and other items. Its hours of operation are from 7:00 a.m. to 7:00 p.m., Monday through Saturday. However, if the permit is granted, Petitioner intends to stay open until 9:00 p.m. every night. Most of Petitioner’s customers, which include children and adults, walk to the store from the surrounding neighborhoods.

6. The location is in a strip mall along with other businesses that include a Laundromat, a barber shop and a hair salon.

7. Mt. Zion Missionary Baptist Church of Cayce and a police substation are located across Poplar Street from the location. Calvary Holiness Church of God is located approximately one block from the location and several residences, including a subsidized apartment housing complex, are also nearby.

8. There is no music either inside or outside at the location.

9. There is adequate lighting outside the location, with streetlights on both corners and lights affixed to the building.

10. Petitioner has not had any law enforcement problems at the location since it began operation with the exception of a break-in through the back door of the location after hours. While open for business, Mr. Norwood will periodically patrol the outside of the location to ensure that no loitering occurs. He also intends to post signs at the location to warn against loitering outside the location. In addition, he is installing a security system. The security system will have four cameras, two on the outside and two on the inside of the location. With this system installed, he will be able to monitor the inside of the store as well as the areas in front of and to the rear of the building.

11. Mr. Norwood is currently the sole employee at the location. He intends to check the identification of customers who wish to purchase beer and wine to verify that they are at least twenty-one (21) years of age. He will have a calendar at the register to assist him in verifying a customer’s age. He also intends to post signs in the store to notify customers that they must be twenty-one (21) in order to purchase beer and wine. If additional employees are hired to work at the location, they would undergo training in alcohol sales.

12. Lieutenant Jeffrey S. Simmons (“Protestant”) of the Cayce Department of Public Safety appeared at the hearing and expressed concern about the proximity of the location to nearby churches and residences. In addition, Lieutenant Simmons believes that the availability of beer and wine in such close proximity to known distribution points for narcotics in the area will add to the existing narcotics problems.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the Administrative Law Court the responsibility to determine contested cases matters governing alcoholic beverages, including beer, wine and liquor.

3. S.C. Code Ann. § 61-4-520 (Supp. 2007) sets forth the requirements for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one.

4. 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. ABC 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 of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5. 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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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 Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

6. Although “proper location” is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The determination of suitability of 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates any adverse effect the proposed location will have on the community. Palmer, supra. It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, in considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Id.

7. Unless there is 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 48 C.J.S. Intoxicating Liquors § 166 (2004).

8. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the State’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

9. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2007), authorizing the imposition of restrictions on permits, provides:

Any written stipulation and/or agreement which is voluntarily entered into by an applicant for a permit or license between the applicant and the Department, if accepted by the Department, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the permit or license and shall have the same effect as any and all laws and any and all other regulations pertaining to the permit or license.

Knowing violation of the terms of the stipulation or agreement shall constitute sufficient grounds to revoke said license.

10. The Department may seek revocation or suspension of permits for the sale of beer and wine “on its own initiative or on complaint signed and sworn to by two or more freeholders resident for the preceding six months in the community in which the licensed premises are located or by a local peace officer, all of whom are charged with the duty of reporting immediately to the department a violation of the provisions of Section 61‑4‑580…” S.C. Code Ann. § 61-4-590 (Supp. 2007).

11. After considering the evidence and testimony presented at the hearing, I conclude that Petitioner’s application for an off-premises beer and wine permit should be granted with one restriction. Petitioner is taking precautions to ensure that no law enforcement problems occur at the location by installing security cameras at the location. He also intends to ensure that no loitering occurs outside the location and will check the identification of all customers wishing to purchase beer and wine to ensure that they are twenty-one (21) years of age.

The Protestant expressed objection to the permit based upon its proximity to nearby churches and residences and due to concern that the availability of beer and wine will contribute to the narcotics problem in the area. However, no one from the nearby churches or residences protested the application. Further, no evidence was presented to show that the availability of beer and wine at this specific location would contribute to the narcotics problems in the area. However, due to the nature of the area, I find that Petitioner’s hours of operations should be restricted to 7:00 a.m. to 9:00 p.m., Monday through Saturday.

Accordingly, I conclude that Petitioner meets all statutory requirements for the issuance of an off-premises beer and wine permit. Moreover, I conclude that the location will not have an adverse impact on the surrounding community and is suitable for an off-premises beer and wine permit so long as it conforms to the restriction set forth below.

ORDER

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

IT IS HEREBY ORDERED that the application for an off-premises beer and wine permit submitted by Norwood Corner Mart, LLC, d/b/a Norwood Corner Mart for its location at 1446 Poplar Street, #C, Cayce, South Carolina is GRANTED contingent upon Petitioner signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

RESTRICTION

Petitioner’s hours of operation shall not exceed 7:00 a.m. to 9:00 p.m., Monday through Saturday.

AND IT IS SO ORDERED.

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May 15, 2008 Marvin F. Kittrell

Columbia, South Carolina Chief Judge