Pursuant
to notice to the parties, a hearing was held on September 16, 2008. The
Petitioner and the Respondent, each represented by counsel, appeared at the
hearing. Linda D. Davis and Karen Rogers McCarty failed to attend the hearing;
thus, their protests are deemed abandoned. Michael W. Strauss appeared at the
hearing and informed the Court that he was only protesting the issuance of the
beer and wine permit with respect to Li’L Cricket 888, located at 703 Wichman
Street, Walterboro, South Carolina. This order shall therefore address the off
premises beer and wine permit for the Li’L Cricket 888 location only. After
carefully weighing the evidence, I conclude that the off premises beer and wine
permits should be granted for each location.
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 off premises beer and wine permit for its location at 703 Wichman Street,
Walterboro, South Carolina.
2. Petitioner
is a Limited Liability Company organized in the State of Delaware. The Limited
Liability Company was formed on March 5, 2008. Petitioner was issued a
Certificate of Authorization from the Office of the Secretary of State of South
Carolina on March 20, 2008. Petitioner is currently in good standing.
3. Notice
of the application was lawfully posted at the location, and in the The Press
and Standard, on May 9, 16, and 23, 2008, a newspaper of general
circulation.
4.
The location is near the intersection of Wichman Street and Church Street
in Walterboro, South Carolina.
5.
There are no residences, churches, schools, or playgrounds within five
hundred (500) feet of the location.
6. The
location will be open from 6:00 a.m. until 1:00 a.m.
7. This
location has been previously licensed, and has been under the same management
for three years.
8. The
location was cited in 2007 by South Carolina Law Enforcement Division for
selling underage, and paid a five hundred dollar ($500.00) fine.
8.
Protestant Michael W. Strauss, a credible protestant who has
experience in the field of law enforcement, opposes the issuance of the off
premises beer and wine permit due to his concerns about the welfare of the
surrounding community. Mr. Strauss also objects to the license being issued
because of the location and the proximity to convenience stores which currently
sell beer and wine.
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 off premises beer and wine permit.
9. Protestant Michael W. Strauss argues that the
location will have an adverse impact on the community. Protestant is very
concerned about market saturation in the immediate area. Protestant also believes
that the proposed location would increase criminal problems in the area. Protestant
introduced evidence of crimes which had occurred at the location, including:
forgery, breach of trust, shoplifting, financial transaction fraud, trespassing
after notice, and disorderly conduct. These crimes however, are instances
where the location is the victim of circumstances, not the perpetrator, and
have no bearing on the decision of the issuance of an off premises beer and
wine permit. The proffered evidence fails to support the Protestant’s
argument, and “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
Protestant very strongly advocated his concerns, he failed to satisfy the
burden of proof necessary to justify the denial of the permit at this location.
The location in question is an area which has been licensed before and takes
reasonable steps to prevent criminal activity.
10. For the reasons above, the Court finds that
the Petitioner has met all of the statutory requirements for an off premises
beer and wine permit, and authorizes the Department to issue the desired
permits.
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 by Palm Foods, LLC, d/b/a Li’L Cricket 888, 703 Wichman Street, Walterboro,
South Carolina be granted.
IT
IS FURTHER ORDERED that the applications for off premises beer and wine
permits by Palm Foods, LLC, d/b/a Li’L Cricket 832, 9075 Fairforest Road,
Spartanburg, South Carolina, and Li’L Cricket 885, 1107 N. Jefferies Boulevard,
Walterboro, South Carolina be granted.
AND IT IS SO
ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
October 8, 2008
Columbia, South Carolina