ORDERS:
FINAL ORDER AND DECISION
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). Bernice O. Price, d/b/a Sandbox Game Room (Price) seeks an on-premise beer and
wine permit for its location at 1308 Davis Street, Lamar, South Carolina.
Respondent South Carolina Department of Revenue
(Department) denied Petitioner’s application for the permit because of a timely
filed protest by Edell Gamble.
A
hearing on this matter was held at 10:00 a.m. on Thursday, October 16, 2008 at
the offices of the ALC in Columbia, South Carolina. All parties appeared at the
hearing, along with Protestant Edell Gamble.
After
listening to the testimony and weighing all evidence presented at the hearing,
this Court finds that Petitioner’s on-premises beer and wine permit 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 an on-premise beer and wine permit for its location at 1308
Davis Street, Lamar, South Carolina.
4. The qualifications set forth in S.C. Code
Ann. § 61-4-520 (Supp. 2007) concerning the residency and age of the applicant
are properly established. Furthermore, Price has not had a permit or license
revoked within the last two (2) years and is of sufficient moral character to
receive a beer and wine permit. Public notice of the application was also lawfully
posted at the location and in a newspaper of general circulation.
5. Pursuant to S.C. Code Ann. § 61-3-440 (Supp. 2007), there
are no churches, schools, or playgrounds within the minimum required distance
of the location.
6. Price
intends to foster a family friendly environment at the proposed location.
Patrons under the age of 21 will be allowed in from 8:00 p.m. to 9:00 p.m.
Alcohol will not be served until after 9:00 p.m. and all patrons under the age
of 21 must be out of the establishment by 9:00 p.m. Only patrons who are the
age of 21 or older will be allowed in the establishment after 9:00 p.m. There
will be no live music at the proposed location. Price will offer sandwiches and
other grill items. There are no outside entertainment areas. Loitering outside
the proposed location will be monitored and limited by Price’s husband, who, along
with Price, will assume managerial duties at the establishment. The area around
the proposed location will be kept free of trash. The hours of operation will
be from approximately 8:00 p.m. to 2:30 a.m. on Fridays and Saturdays. The
establishment will be closed all other days of the week.
7. Edell Gamble’s opposition to the issuance of the
permit centers on her concern for the general safety and welfare of the
children in the area. She is concerned that alcohol will lead to an increase in
violence and crime in the area. She is worried about loud noise and indicated
that it has been a problem at the proposed location. Ms. Gamble is worried that
too many children will be exposed to alcohol at the proposed location.
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. § 61-4-520 (Supp. 2007) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the
proposed location be a proper and suitable one. S.C. Code Ann § 61-4-520(6)-(7)
(Supp. 2007).
5. 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).
6. 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).
7. 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)).
8. 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).
9. 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).
10.
I conclude that the Petitioner has met its burden of proof in showing
that it meets all of the statutory requirements for holding an on-premises beer
and wine permit. Although cognizant of the Protestants’ concerns, I conclude
that the proposed location is a proper one for granting the permit. I find that the proposed location is suitable for
Petitioner to operate with an on-premises beer and wine permit and that
Petitioner’s operations will not be detrimental to the welfare of the
surrounding community.
11. 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 beer and wine permit. There has not been a
sufficient evidentiary showing that the location is unsuitable for Petitioner’s
proposed beer and wine sales or that the issuance of the permit would have an
adverse impact on the surrounding community.
ORDER
Based upon the above Findings
of Fact and Conclusions of Law, it is hereby:
ORDERED that the
Department resume processing Petitioner's application and issue an on-premise
beer and wine permit to Petitioner upon payment of the proper fees and costs.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
October 27, 2008
Columbia, South Carolina
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