SC Administrative Law Court Decisions

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). R&K Market & Grill (Petitioner) seeks an on-premise beer and wine permit for its location at 699 Ridge Road, North Augusta, South Carolina.

Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit because of timely filed protests by residents of the North Augusta area.

A hearing on this matter was held at 10:00 a.m. on Thursday, October 30, 2008 at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with the Protestants.

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 699 Ridge Road, North Augusta, South Carolina.

4. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2007) concerning the requirements for permitting are established. Furthermore, the proprietors have not had a permit or license revoked within the last two (2) years and are 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. Willie Butler, Sr. testified on behalf of the Petitioner in this matter. Mr. Butler operated the proposed location with a permit to sell beer and wine for approximately six years without incident. During that time, the proposed location operated simultaneously as a convenience store and sports bar. Mr. Butler believes that the current proprietors intend to run the proposed location in a similar manner. Mr. Butler leases the proposed location to current proprietors. There are other establishments in the proximate area of the proposed location that are permitted to sell alcohol. Mr. Butler never had any problems with authorities or with the Department during the time he operated the proposed location.

7. Rodney Hawkins is the applicant in this matter and currently operates the proposed location. Previously, Mr. Hawkins worked as a cook for Sheraton Hotels. After making significant upgrades, Mr. Hawkins opened the proposed location on July 2, 2008. The front of the proposed location will be operated as a convenience store, while the back of the proposed location will operate as a bar and grill. The hours of operation will be from approximately 9:00 a.m. to 9:00 p.m. The bar will stay open 2 hours later to approximately 11:00 p.m. There is adequate security lighting in front and behind the proposed location. Loitering will not be tolerated. There will be no live music at the proposed location. He will ensure that employees are trained regarding the proper sale of alcohol and will not sell alcohol to underage individuals. He has never has any problems with the authorities since opening in July.

8. Timothy Curry’s protest centers on his concern for the overall health and welfare of the surrounding community. After Mr. Butler ceased operating the proposed location, the area around the proposed location became burdened with illicit activity. Mr. Curry cited the increase in criminal incidents in the proximate area of the proposed location as proof that it is unfit for permitting. Specifically, Mr. Curry pointed to a drug bust occurring in October of last year near the proposed location. At the time of the illicit activity, the proposed location was not licensed or permitted to sell alcohol. There have been no such incidents in or around the proposed location since Mr. Hawkins began operations.

9. Although not recognized as an official protestant, Roosevelt Curry was also afforded an opportunity to voice his concerns about the proposed permit. Mr. R. Curry indicated that he has nothing against the location as it is currently operated. He is concerned that the presence of alcohol may disturb the peace of the surrounding neighborhood.

10. After the conclusion of the hearing, the Petitioner offered the following stipulations: 1) The Petitioner will not allow bands, outside music, or the playing of loud music in or around the proposed location; 2) Petitioner will close no later than 11:00 p.m. and will not be open on Sundays; 3) Mr. Hawkins will remain on the premises after closing until the parking lot of the proposed location is vacant; 4) The security lighting and the no-loitering signs will be maintained and kept in good working order. 

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 for its location at 699 Ridge Road, North Augusta, South Carolina upon payment of the proper fees and costs.

IT IS FURTHER ORDERED that Petitioner’s license and permit be made subject to the following conditions:

1)                           The Petitioner will not allow bands, outside music, or the playing of loud music in or around the proposed location;

2)                           Petitioner will close no later than 11:00 p.m. and will not be open on Sundays;

3)                           Mr. Hawkins will remain on the premises after closing until the parking lot of the proposed location is vacant;

4)                           The security lighting and the no-loitering signs will be maintained and kept in good working order.

IT IS FURTHER ORDERED that, if possible, any further contested alcohol license and permit applications at 699 Ridge Road, North Augusta, South Carolina, be assigned to the undersigned because of his knowledge of the prior application there.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

November 5, 2008

Columbia, South Carolina