South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Palm Foods Stores, LLC, d/b/a Lil Cricket 832, 885, and 888 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Palm Foods Stores, LLC, d/b/a Lil Cricket 832, 885, and 888

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0343-CC

APPEARANCES:
Burnet R. Maybank, III, Esquire, for the Petitioner

Andrew L. Richardson, Jr., Esquire, for the Respondent

Michael W. Strauss, Protestant
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC) pursuant to S.C. Code Ann. § 1-23-310 et seq. (Supp. 2007), § 61-2-260 (Supp. 2007), and § 61-6-185 (Supp. 2007) for a contested case hearing. The Department of Revenue (Department) denied the application of Palm Foods Stores, LLC (Petitioner) for off premises beer and wine permits for its locations: Li’L Cricket 832, 885, and 888.[1] These permits were denied after the receipt of timely filed public protests by Linda D. Davis, Michael W. Strauss, and Karen Rogers McCarty.

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



[1] Each location was initially a separate contested case hearing. By order of this Court dated August 25, 2008; they were consolidated into a single contested case hearing.


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