South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Marvin G. Wilson, III d/b/a Granville’s Cafe vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Marvin G. Wilson, III d/b/a Granville’s Café

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0547-CC

APPEARANCES:
James H. Harrison, Esquire, For Petitioner

Caroline H. Raines, Esquire, for Respondent
 

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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