ORDERS:
ORDER
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 the license because of a
timely filed protest by Vermell E. Chisolm.
A
hearing on this matter was held at 10:00 a.m. on Wednesday, January 28, 2009 at the offices of the ALC in Columbia, South Carolina. All parties appeared at the
hearing, along with Protestant Vermell E. Chisolm.
After
listening to the testimony and weighing all evidence presented at the hearing,
this Court finds that Petitioner’s license to sell liquor by the drink shall be
granted.
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. The ALC has subject matter and personal jurisdiction.
2. Notice of the time, date, place and subject matter of the hearing was
timely given
to all parties
and the Protestant.
3. This
case involved an application submitted by the Petitioner for a license to sell
liquor by the drink at 730 Rutledge Avenue, Charleston, South Carolina.
Petitioner has held an on-premises beer and wine permit at that location for
several years and has operated an upscale restaurant and catering business at
that location without complaint from his neighbors or from local law
enforcement. Petitioner testified that he understands that he cannot use this
license to provide liquor at any events he caters off of his licensed premises.
4.
The qualifications set forth in S.C. Code Ann. § 61-6-1820 concerning the
requirements for licensure are established. Furthermore, the proprietor has
not had a permit or license revoked within the last two (2) years and is of
sufficient moral character to receive a liquor by the drink license. Public
notice of the application was also lawfully posted at the location and in a
newspaper of general circulation.
5.
Pursuant to 61-6-120, there are no churches, schools, or playgrounds within the
minimum required distance of the location.
6.
Respondent South Carolina Department of Revenue averred that the Petitioner and
his business location meet the statutory qualifications to hold a liquor by the
drink license and that it would have granted the application but for the
protest of Ms. Chisolm.
7.
Ms. Chisolm testified that she believed the addition of a liquor license to the
Petitioner’s business would inhibit her ability to lease her property. She
offered no testimony to support that conclusion.
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. § 61-6-1820 (Supp. 2007) sets
forth the basic criteria for the issuance of a liquor by the drink license.
Although the suitability of the proposed location is not listed in Section
61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276
S.E.2d 308 (1981).
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.
Petitioner has operated an upscale restaurant and catering business at the
proposed location for several years without incident or complaint.
Protestant’s testimony as to her belief that the addition of a liquor license
to this business will inhibit her ability to lease her adjacent property is
speculative at best. Protestant offered no testimony or evidence to support
her speculation.
11.
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 liquor by
the drink license. Although cognizant of the Protestant’s concerns, I conclude
that the proposed location is a proper one for granting the license. I find
that the proposed location is suitable for petitioner to operate a liquor by
the drink license and that Petitioner’s operations will not be detrimental to
the welfare of the surrounding community.
IT
IS THEREFORE ORDERED that the license to sell liquor by the drink is hereby
granted subject to the restriction that Petitioner may not use this license to
provide liquor to any catered events off of his licensed premises. The Respondent
is ordered to continue to process Petitioner’s application and to issue the
license upon the satisfaction of all administrative requirements.
February 18, 2009
Columbia, SC |
____________________________________
John D. McLeod, Judge
S.C. Administrative Law Court |
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