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 the license because of a timely filed protest by Ronnie Zimerle.

A hearing on this matter was held at 2:00 p.m. on Tuesday, March 17, 2009 at the offices of the ALC in Columbia, South Carolina. All parties appeared at the hearing, along with Protestant Ronnie Zimerle.

After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s license to sell liquor 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 at 1238 Yeamans Hall Rd. Suite 2, Hanahan, South Carolina.

4. The qualifications set forth in S.C. Code Ann. § 61-6-110 (Rev. 2009) 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 license and that it would have granted the application but for the protest of Mr. Zimerle.

7. Mr. Zimerle testified that be believed the granting of a liquor license to the Petitioner’s business would unduly increase competition for his and the other retail liquor stores in the general area.

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. § 61-6-110 (Rev. 2009) sets forth the basic criteria for the issuance of a liquor license. Although the suitability of the proposed location is not listed in Section 61-6-110 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 testified that he plans to operate a liquor store just inside the Berkley County line from North Charleston in an area that is under going significant commercial and residential growth. Protestant’s testimony as to his belief that the addition of a liquor license to this business will adversely impact his liquor store and the other liquor stores in the area is speculative at best. Protestant offered no testimony or evidence to support his 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 liquor 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 store 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 is hereby granted. The Respondent is ordered to continue to process Petitioner’s application and to issue the license upon the satisfaction of all administrative requirements.