ORDERS:
ORDER
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). Drexell A. Dubose, d/b/a Rembert Bottle Shop (“Petitioner”) seeks
a retail liquor license for its location at 8320 Hwy. 521, Rembert, South
Carolina.
Respondent South Carolina Department of Revenue (“Department”)
denied Petitioner’s application for the permit because of a timely filed
protest Lt. Roosevelt Nelson of the Sumter County Sheriff’s Office.
A
hearing on this matter was held at 10:00 a.m. on Wednesday, August 13, 2008, at
the offices of the Administrative Law Court in Columbia, South Carolina. All
parties appeared at the hearing. Lt. Nelson, the sole protestant in this
matter, did not appear.
After
listening to the testimony and weighing all evidence presented at the hearing,
this Court finds that Petitioner’s retail liquor license 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.
The Petitioner seeks a retail liquor license for its location at 8320 Hwy. 521,
Rembert, South Carolina.
4. The qualifications set forth in S.C. Code
Ann. § 61-6-110 (Supp. 2007) concerning the age, residency, and reputation of the
Petitioner are properly established. Furthermore, the Petitioner has not had a
license for the sale of alcoholic liquors revoked within the last five years,
and notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
5. The Petitioner is of
sufficient moral character to receive a retail liquor license. No other member
of Petitioner's household has been issued a retail liquor store license.
Additionally, the Petitioner has not been issued more than three retail liquor
licenses, nor does he have an interest, financial or otherwise, in more than
three retail liquor stores.
6. The
proposed license is for the off-premises consumption of liquor. Petitioner
holds a retail liquor license for one other location. Proposed location is
located in an unincorporated area of Rembert, South Carolina. Petitioner plans
to operate location with the assistance of one other individual. This
individual is of sufficient age and moral character to assist with operations.
Petitioner is familiar with the laws of South Carolina regarding the sale of
alcohol. Petitioner employs a device which scans and validates all
Identification. Petitioner will not allow the on-premises consumption of
alcohol.
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. § 61-6-110 et seq. (Supp. 2007) sets forth the requirements for
determining eligibility for a retail liquor license.
Two
Step Analysis
5. A
two step analysis is needed for reviewing a retail liquor license: a distance
measurement and a proximity factor.
Under
the distance measurement, a "no license zone" may exist for schools,
playgrounds, and churches within 300 feet (if in a municipal area) and 500 feet
(if in a non-municipal area) of a proposed location. See S.C. Code Ann §
61-6-120 (Supp. 2007) ("[DOR] shall not grant or issue any license
provided for in this article or Article 7 of this chapter, if the place of business
is within three hundred feet of any church, school, or playground situated
within a municipality or within five hundred feet of any church, school, or
playground situated outside of a municipality.").
However,
in addition to the distance measurement, case law establishes a second
proximity test for a liquor license which applies even if the proposed location
is permissible under S.C. Code Ann § 61-6-120 (Supp. 2007). The second test
asks whether the proposed location is suitable under a fact-based case by case
analysis. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308
(1981) (even if specific statutory distance criteria are satisfied, a liquor
license is properly granted only if the location is a proper location).
Distance
Measurements for Retail Liquor License
6. The
starting point for the analysis of the retail liquor license is the distance
measurements of S.C. Code Ann. 61-6-120(A). Since the location under review is
not within an incorporated municipality, the statute initially imposes a separation
of 500 feet between the proposed location and churches and schools. Here, the
SLED report indicates that the distance requirements of § 61-6-120 have been
complied with.
Proximity
Requirement for Retail Liquor License
7. However,
notwithstanding the fact that an applicant meets the statutory distance
measurements imposed for retail liquors, the retail liquor applicant must
nonetheless demonstrate that the location is a suitable location. Schudel v.
S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if the specific
statutory distance criteria of 500 feet or 300 feet to a church, school, or
playground are satisfied, a retail liquor license is properly granted only if
the location is a suitable location). Therefore, a retail liquor license may
not be granted unless the location of the place of business is a proper
location. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
8. 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).
9. 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).
10. 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)).
11. 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).
12. 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 license 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).
13.
I conclude that the Petitioner has met its burden of proof in showing
that it meets all of the statutory requirements for holding a retail
liquor license. I
find that the proposed location is suitable for Petitioner to operate with a retail
liquor license and that Petitioner’s operations will
not be detrimental to the welfare of the surrounding community.
14. 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, Petitioner meets all of the
statutory and regulatory criteria enacted by the South Carolina General
Assembly for the issuance of a retail liquor license. There has not been a sufficient evidentiary showing that
the location is unsuitable for Petitioner’s proposed liquor sales or that the
issuance of the license would have an adverse impact on the surrounding
community.
ORDER
Based upon the foregoing
Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department resume processing Petitioner's application and issue a retail
liquor license to Petitioner for its location at 8320 Hwy. 521, Rembert, South
Carolina, upon payment of the proper fees and costs.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
August 13, 2008
Columbia, South Carolina
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