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).

Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for an on premises beer and wine permit and liquor by the drink license because of a timely filed protest by Pastor Kenneth F. Hodges.

A hearing on this matter was held at 10:00 a.m. on Thursday, January 15, 2009 at the offices of the ALC in Columbia, South Carolina. All parties appeared at the hearing, along with protestant Pastor Kenneth F. Hodges.

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

This case involved applications for a both beer and wine permit and a license to sell liquor by the drink. The permit and license would have been granted but for timely filed protests.

The protestants appeared at the hearing and contested the issuance of the beer and wine permit because of the proximity of their church and contested the license for the on premises sale and consumption of liquor by the drink based on the specific measurement of the distance between their church and the location sought to be licensed for the on premises sale and consumption of liquor by the drink.

Although evidence was taken in regard to the license application for sale and consumption of liquor by the drink, the Court defers judgment on that issue and will only rule on the permit application in this Order. The application for sale and consumption of liquor by the drink will remain pending before this Court under Docket #08-ALJ-17-00456-CC, until the further order of this Court. In the event that the Court desires or permits further hearing, all parties and protestants will receive notice thereof.

The pertinent testimony on behalf of the protestants was ably and courteously presented by Reverend Kenneth Hodges, the pastor of Tabernacle Baptist Church. The location proposed to be permitted for the on premises sale and consumption of beer and wine is a building in which was formerly located a business with an on premises sale and consumption permit and is within the city limits of Beaufort, S. C. and located therein at 310 West St. Tabernacle Baptist Church is an historical building and is much a part of the history of the City of Beaufort.

The church is located in an area in which spiritual matters have been thrust shoulder to shoulder with temporal matters, an inevitable occurrence in growing communities. There is another business in close proximity to the church which has a permit for on premises consumption of beer and wine.

I find that as a matter of fact that the location proposed to be permitted is suitable to be permitted for the on premises sale and consumption of beer and wine. However, I do find that because of the close proximity of the church, some restrictions as to noise and litter should be imposed.

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 (Supp. 2007) 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).

IT IS THEREFORE ORDERED that the permit to sell beer and wine is hereby granted and the respondent is ordered to proceed to process and issue the same, subject to the conditions set forth hereinafter, to wit:

a.) No music or other noise created upon the licensed premises shall be audible within the church sanctuary during Sunday services[1] or during weddings, funerals or baptisms.

b.) Litter and trash resulting from the operation of the permitted premises shall be picked up on each day the business is operated and the premises kept in good order.

IT IS FURTHER ORDERED that the decision on the application for the license to sell liquor by the drink is held in abeyance until further order of the Court, and the Court retains jurisdiction thereof under Docket # 08-ALJ-17-00456-CC, which shall remain open until the further order of this Court.