SC Administrative Law Court Decisions

Pursuant to notice to the parties, a hearing in this matter was held before me on August 4, 2008, at the offices of the Court in Columbia, South Carolina. Both parties and the Protestants appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I conclude that the retail liquor license should 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. Petitioner seeks a retail liquor license for its location at 1035B West Blue Ridge Drive, Greenville, South Carolina; it is located inside the city limits.

2. Petitioner is a partnership. Both it and its two partners have a reputation for peace and good order in the community. Donald Edward Burton (“Mr. Burton”) and Timothy Lee Crowe (“Mr. Crowe”) are the sole owners of TD’s Spirits, d/b/a TD’s Spirits.

3. Mr. Burton is over the age of twenty-one (21) and is of good moral character. He 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.

4. Mr. Crowe is over the age of twenty-one (21) and is of good moral character.^[4] He 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.

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

6. Neither the Petitioner nor either of its partners currently hold any other retail liquor licenses, or have an interest, financial or otherwise, in any other retail liquor store. Further, none of them have ever held any other license for the manufacture or sale of alcoholic liquors.

7. Mr. Burton and Mr. Crowe also manage a convenience store, TD’s Express Mart, situated adjacent to the location. The convenience store has been operational for approximately nine (9) years. Further, Petitioner currently holds a valid beer and wine permit from the Department for the convenience store. The convenience store’s hours of operation are from 6:00 a.m. to 11:00 p.m., Monday through Thursday, 6:00 a.m. to 12:00 a.m., Friday and Saturday, and 8:00 a.m. to 10:00 p.m. on Sunday. Presently, the convenience store’s employees include Mr. Burton, Mr. Crowe, Ms. Frances Cudd – Mr. Crowe’s mother, and Ms. Brandi Daniels – Mr. Crowe’s daughter.

8. Since the convenience store began operating with a beer and wine permit, it has been cited twice for violations by the Department for the sale of beer or wine by an employee to a minor customer. Since the second violation, Mr. Burton and Mr. Crowe have worked to ensure that no other violation of selling alcohol to an underage individual occurs: by having the Greenville County Sheriff’s Department conduct classes with its employees to ensure that alcohol is not sold to underage individuals; by having its employees complete online training programs aimed at eliminating this issue; by posting signs throughout the store stating that an individual must be the age of 21 or over to purchase alcohol; and, by purchasing a “Ruby” ID scanning system, at the approximate cost of $3500, which will not allow the register to process a sale of alcohol to an individual if the driver’s license indicates that the individual is under the age of 21.

9. There are no residences, churches, schools or playgrounds within five hundred (500) feet of the location. The nearest church, Hilltop Avenue Baptist Church, is located approximately one thousand (1000) feet from the proposed location. The area between the proposed location and the church is heavily wooded; thus, the proposed location is not visible from the church. The nearest school, Lakeview Middle School, is located approximately 1.3 miles from the proposed location.

10. The location’s proposed hours of operation are from 9:00 a.m. to 7:00 p.m., Monday through Saturday. There is adequate parking and lighting surrounding the proposed location.

11. Protestant Deanna Rogers resides at 106 Aladdin Street, Greenville, South Carolina. She objects to the license being issued because of numerous reasons: the proposed location is situated near her home and the Hilltop Avenue Baptist Church; and, the proposed location will substantially add to loitering and criminal activity that currently plagues the neighborhood. Ms. Rogers is particularly concerned with “repeat offenders” walking up and down the streets in her neighborhood. Finally, she believes that partaking in alcohol is a “sin,” and that many people’s lives are destroyed by consuming alcohol.

12. Protestant Gerald Jones resides at 13 Tazewell Drive, Greenville, South Carolina. He is a retired United States Postal Service employee. Mr. Jones objects to the license being issued because of numerous reasons: the proposed location is situated near residences and the Hilltop Avenue Baptist Church; the proposed location will add to loitering, trash problems, and criminal activity that currently plagues the neighborhood; and, it is situated on a busy four-lane highway.

13. Protestant Betty Jones resides at 13 Tazewell Drive, Greenville, South Carolina with her husband, Protestant Gerald Jones. She objects to the license being issued based upon the same reasons presented by her husband. In addition, Ms. Jones is particularly concerned about the children who attend Lakeview Middle School and cross the busy highway near the proposed location. In addition, she voiced concerns regarding the traffic because the church’s Family Life Center is located across the highway. She stated that church members regularly cross that street to enter the Family Life Center, and that the proposed location would only contribute to the traffic in the area as well as provide an opportunity for individuals to drink alcohol and loiter about the area.

14. There is one other retail liquor store located approximately one (1) mile from the proposed the location.

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 (as amended 2008) 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 responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2007) sets forth the general requirements for determining eligibility for a retail liquor license. S.C. Code Ann. § 61-6-120 (Supp. 2007) specifically provides that a liquor license shall not be issued to a place of business if:

the place of business is . . . within five hundred feet of any church, school, or playground situated outside a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along a public thoroughfare from the point of the grounds in use as part of such church, school, or playground.

23 S.C. Code Ann. Regs. 7-303 (Supp. 2007) clarifies how distances from the location to schools, churches, and playgrounds are measured.

4. Additionally, S.C. Code Ann. § 61-6-910(2) (Supp. 2007) provides that an application for a license to sell alcoholic liquors must be denied if “the store or place of business to be occupied by the applicant is not a suitable place.”

5. 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).

6. 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).

7. Although “proper location” is not statutorily defined, the ALC 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.

8. 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 45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); See 48 C.J.S. Intoxicating Liquors § 166 (2004).

9. 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 ALC, as the tribunal authorized to grant the issuance of a license, is likewise authorized to revoke or suspend it for cause. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

10. The Department may also seek to suspend or revoke a retail liquor license pursuant to S.C. Code Ann. § 61-6-100 (Supp. 2007).

11. After carefully weighing the evidence and applying the law as discussed above, the Court finds that the proposed location is suitable and otherwise meets the statutory requirements. The South Carolina Law Enforcement Division (“SLED”) determined that the proposed location is not within 500 feet of any church, school, or playground. Furthermore, the area surrounding the proposed location is partially commercial: there is a used car lot approximately one block from the proposed location, and there is a factory situated across the street from the proposed location.

Although the Protestants raised concerns regarding the proximity of the proposed location to Lakeview Middle School, the school is located approximately 1.3 miles from the proposed location. See 23 S.C. Code Ann. Regs. 7-303. And while the children attending the school occasionally cross the highway near the proposed location, there was no evidence presented at the hearing that the proposed location contributes to this problem.^[5] It would be impossible – and unreasonable – to require the proposed location to police the activities of children attending a local school.

The Protestants’ assertions regarding the emotional and potential criminal impact of a neighboring liquor store on family and friends in the area, although genuinely sincere, are unsupported by the evidence and are insufficient to warrant denial of the license sought. The Protestants did not present any evidence that the proposed location or the convenience store specifically contributed to any of the loitering and criminal activity testified to during the hearing. Moreover, no evidence was presented of law enforcement problems either at the proposed location or in the surrounding area.^[6] In fact, a substation of the Greenville County Sheriff’s Department is located nearby, and officers of the Sheriff’s Department frequently visit the convenience store. Although the Court sympathizes with the Protestants concerning the occurrences of loitering and other criminal activity in the general neighborhood, no evidence was presented to attribute the cause of these occurrences to the proposed location or that such problems might be exacerbated if this license is granted. The Court therefore concludes that the Petitioner meets all of the statutory requirements to obtain a retail liquor license contained in S.C. Code Ann. §§ 61-6-100 et seq.

Accordingly, the Court finds that the Petitioner meets all the statutory requirements for a retail liquor store and authorizes the Department to issue the retail liquor license to Petitioner for its location at 1035B West Blue Ridge Drive, Greenville, South Carolina.

ORDER

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

IT IS HEREBY ORDERED that the Department shall GRANT Petitioner’s application for a retail liquor license for the premises located at 1035B West Blue Ridge Drive, Greenville, South Carolina, in accordance with S.C. Code Ann. § 61-6-100.

AND IT IS SO ORDERED.

_________________________________

Marvin F. Kittrell

Chief Judge

August 8, 2008

Columbia, South Carolina