SC Administrative Law Court Decisions

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 a off premises beer and wine permit for its location at 8340 Highway 265, Mt. Croghan, South Carolina.

2. Petitioner is a resident of the State of South Carolina and has maintained her principal place of abode in this state for at least thirty (30) days prior to making this application.

3. Notice of the application was lawfully posted at the location, and published in the Progressive Journal, on August 5, 12, and 19, 2008, a newspaper of general circulation.

4. Petitioner does not currently hold any retail liquor licenses, or have an interest, financial or otherwise, in any retail liquor store.

5. The location is situated near the intersection of Fairview Church Road and Airport Road.

6. There are no residences, churches, schools, or playgrounds within five hundred (500) feet of the location.

7. The proposed hours at the location are Monday through Wednesday, 6:00 a.m. to 10:00 p.m., and Thursday through Saturday, 6:00 a.m. to 11:00 p.m. There will be no beer sales on Sunday.

8. Petitioner will run the location with the help of her sister and is acutely aware of the Department’s policies with regard to the sale of alcohol to underage patrons.

9. Protestants, Reverend Carl A. Stokes, Larry M. Schoonover, and Charles A. Agnew’s principal concerns are the establishment’s proximity to Fairview Baptist Church and their general moral objections to alcohol sales and consumption. Protestants also offered testimony concerning the detrimental effects of alcohol and fatal incidents involving acquaintances and family members.

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. 2008).

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. The ultimate issue of the Protestants’ case is that the proximity of the location to Fairview Baptist Church will create an unhealthy environment for church members, who frequently attend church throughout the week for activities. Protestants claim that this license should be denied as there are already other stores in the general area which serve alcohol. Findings, however, 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). While the Court is sympathetic to the Protestants’ concerns, the isolated incidents which were introduced at the hearing are unrelated to the licensing of the proposed location.

For the reasons above, the Court finds that the Petitioner has met all of the statutory requirements, and authorizes the Department to issue the off premises beer and wine permit.

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 Sheila S. Hickman, d/b/a Paw Paw’s Out Post, 8340 Highway 265, Mt. Croghan, South Carolina must be granted.

AND IT IS SO ORDERED.

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

January 28, 2009

Columbia, South Carolina