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 timely filed protests by Norman Ketchie, Martha R. McKevlin, David Evans, Leonard Hultquist, Ronald A. Jones, Jr., William N. Walker, Danny Riddle, Sandra Riddle, Budd G. Price, and Robert S. Duncan.

A hearing on this matter was held at 10:00 a.m. on Wednesday, March 18, 2009 at the offices of the ALC in Columbia, South Carolina. All parties appeared at the hearing, along with Protestants Norman Ketchie and Martha R. McKevlin.

After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s beer and wine and nonprofit private club liquor by the drink license 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 Protestants.

3.                  This case involved an application submitted by the Petitioner for a beer and wine and nonprofit private club liquor by the drink license at 115 E. Washington Street, Walterboro, 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 proprietors have not had a permit or license revoked within the last two (2) years and are 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 section 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 nonprofit private club liquor by the drink license and that it would have granted the application but for the protests of Norman Ketchie, Martha R. McKevlin, David Evans, Leonard Hultquist, Ronald A. Jones, Jr., William N. Walker, Danny Riddle, Sandra Riddle, Budd G. Price, and Robert S. Duncan.

7.                  Petitioner testified that he plans to operate a restaurant and bar as a private social club at 115 E. Washington Street in Walterboro, South Caroli na. Petitioner voluntarily agreed, subject to the terms of his lease and his landlord’s approval, that he will comply with any regulations or guidelines established and adopted by the Appearance Committee of the City of Walterboro provided that any such regulations or guidelines applied to all businesses on East Washington Street. Petitioner stated that his hours of operation will be from 11:00 a.m. to 11:00 p.m. on Monday through Wednesday, 11:00 a.m. to 2:00 a.m. on Thursday through Saturday, and that he will not open until 1:00 p.m. on Sundays. Petitioner stated that he will enforce an age limitation beginning at 9:30 p.m. each evening restricting entry to males 25 years old or above and females 21 years old or above. Petitioner also stated that he will enforce the age restrictions by employing security properly trained to check identification at the entrance of 115 E. Washington Street. Lastly, Petitioner stated that he will enforce a dress code beginning at 9:30 p.m. each evening by not allowing entry to persons wearing athletic shoes, baseball caps, or sagging pants.

8.                  Protestant Norman Ketchie testified he is opposed to the looks of the exterior of the establishment at 115 E. Washington Street, any exclusionary practices of a private club and the hours of operation of a private club. Martha R. McKevlin testified she did not like the colors of the exterior of 115 E. Washington Street and that she believed the granting of a beer and wine and liquor license to the Petitioner’s business would not be advantageous to businesses 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. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding a beer and wine and 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 private social club and that Petitioner’s operations will not be detrimental to the welfare of the surrounding community.

11. Petitioner’s license shall be issued subject to Petitioner operating consistent with the representations Petitioner made at this hearing. Petitioner’s agreement as to the exterior of the building, hours of operation, age restrictions, dress code and security are hereby made conditions of his license and of this Order.

IT IS THEREFORE ORDERED that the beer and wine and nonprofit private club liquor by the drink license is hereby granted subject to the following conditions:

IT IS ORDERED

a.                           Subject to the terms of his lease and his landlord’s approval, Petitioner will comply with any regulations or guidelines established and adopted by the Appearance Committee of the City of Walterboro provided that any such regulations or guidelines applied to all businesses on East Washington Street.

b.                           Petitioner’s hours of operation will be from 11:00 a.m. to 11:00 p.m. on Monday through Wednesday, 11:00 a.m. to 2:00 a.m. on Thursday through Saturday, and that he will not open until 1:00 p.m. on Sundays.

c.                           Petitioner will enforce an age limitation restricting entry to males 25 years old or above and females 21 years old or above. Petitioner shall enforce this age restrictions beginning at 9:30 p.m. each evening.

d.                          Petitioner will employ security properly trained to check identification at the entrance of 115 E. Washington Street.

e.                           Petitioner will enforce a dress code beginning at 9:30 p.m. each evening by not allowing entry to persons wearing athletic shoes, baseball caps, or sagging pants.

IT IS FURTHER ORDERED that Respondent shall continue to process Petitioner’s application and issue the license upon the satisfaction of all administrative requirements.