ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (“ALC” or “Court”) pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (2005 & as amended 2008), S.C. Code Ann. 1-23-600(A) (as amended 2008),
S.C. Code Ann. § 61-2-260 (Supp. 2007), and S.C. Code Ann. § 61-6-185 (Supp.
2007) for a contested case hearing. Thomas J. Brunson, d/b/a State Line
Discount Liquor Warehouse (“Petitioner”), seeks a retail liquor license for his
location at 1134 Frontage Road, Unit 101-103, Hardeeville, South Carolina
(“location”). Protests to the application were filed with the South Carolina
Department of Revenue (“Department”). Because of the protests, the hearing was
required.
Pursuant
to notice to the parties, a hearing in this matter was held before me on October
9, 2008, at the offices of the Court in Columbia, South Carolina. Both parties
and one of the protestants, Michael Foskey 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 1134 Frontage Road, Unit
101-103, Hardeeville, South Carolina; it is located inside the city limits.
2. Thomas
Brunson is the sole owner of State Line Discount Liquor Warehouse and will be
responsible for the location’s day-to-day operations.
3. Mr.
Brunson 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. Notice
of the application was lawfully posted both at the location and in a newspaper
of general circulation.
5. Petitioner
does not currently hold any other retail liquor licenses or have an interest,
financial or otherwise, in any other retail liquor store. Further, Petitioner
has never held any other license for the manufacture or sale of alcoholic
liquors.
6. The commercial building where the location
will be situated has not yet been constructed. The real property on which the
building will be constructed is located on the Frontage Road beside Interstate
95 in the town limits of Hardeeville, Jasper County. The real property
consists of approximately one acre. PTMBMAC, LLC (“the LLC”) is
the owner of the property and will construct and own the building. It will
lease the space to Petitioner for the retail liquor store. Mr. Brunson is one
of the partners and owners of the LLC. The building will contain 10,000 square
foot; the liquor store will occupy 6,000 square feet of the building. The other
4,000 square feet will be subdivided into two 2,000 square foot commercial rental
properties. No bars or restaurants will become tenants of the rental spaces
adjacent to the location. Other commercial developments are also planned for
the surrounding area along the frontage road.
7. A wooded buffer will be maintained along the
back of the real property (which faces Burke Street). A parking lot will be
paved in front of and along one side of the building; it will contain 36
parking spaces. Petitioner will be allocated 3/5 of the spaces.
8.
The location’s proposed hours of operation are from 9:30 a.m. to 7:00
p.m., Monday through Saturday.
9. Petitioner
will implement measures to ensure that alcoholic liquors are not sold to anyone
under the age of twenty-one (21) and to ensure that no alcoholic liquors are
consumed at any place on the real property owned by the LLC. Additionally,
Petitioner plans to install a security system inside the location.
10. Litter
will be collected on a daily basis, and the outside of the real property owned
by the LLC will remain clean and free of debris at all times.
11. There
are no churches, schools or playgrounds within three hundred (300) feet of the
location. There are a number of residences in a neighborhood behind the
location.
12. Protestant
Michael S. Foskey, who lives with his family in the neighborhood behind the
location, filed a protest to the application. Mr. Foskey is a member of
Hardeeville City Council. He is concerned that the placement of a retail
liquor store at the location will result in increased traffic in the
surrounding residential areas which would threaten the safety of children
living and playing nearby. Also, Mr. Foskey is concerned that a retail liquor
store at the location would result in increased crime in the general area,
including the potential for robberies at the location.
13. There
are at least two other liquor stores within approximately two (2) miles of 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 three hundred feet of any church, school, or playground
situated within 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 a suitable one and meets the statutory
requirements. The South Carolina Law Enforcement Division (“SLED”) determined
that the proposed location was not within 300 (three hundred) feet of a church,
school, or playground. Furthermore, the location will be constructed in a
commercial area where other commercial buildings have already been constructed and
where others are planned.
The
Court is mindful of the Protestant’s concerns. However, they do not provide a
sufficient basis to warrant denial of the license sought by Petitioner. The
sole protestant who appeared at the hearing did not present any credible
evidence of any criminal activity in the general area of the location. Further,
he did not present any evidence that the placement of a retail liquor store at
the location would cause, precipitate, or contribute any criminal activity thereat.
His testimony consisted solely of conjecture.
The
Court concludes that the Petitioner meets all of the statutory requirements as contained
in S.C. Code Ann. §§ 61-6-100 et seq. to obtain a retail liquor license
and it authorizes and directs the Department to issue the requested retail
liquor license to Petitioner for its location at 1134 Frontage Road, Unit 101–103,
Hardeeville, Jasper County, 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 1134 Frontage Road, Unit
101–103, Hardeeville, Jasper County, South Carolina, and shall issue it
forthwith.
AND IT IS SO ORDERED.
_________________________________
Marvin
F. Kittrell
Chief
Judge
October 17,
2008
Columbia,
South Carolina
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