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 an on-premise retail beer and
wine permit because of protests filed by seventy-nine (79) individuals who purportedly
live in the surrounding community.
A
hearing on this matter was held at 2:00 p.m. on Wednesday, March 18, 2009 at the offices of the ALC in Columbia, South Carolina. All parties appeared at the
hearing.
After
listening to the testimony and weighing all evidence presented at the hearing,
this Court finds that Petitioner’s on-premises retail beer and wine permit shall
be granted.
FINDINGS OF FACT
This
case involved Petitioner’s application for an on-premise retail beer and wine
permit at 1601 Eagle Landing Boulevard in Hanahan, South Carolina.
Respondent
advised the Court that the Petitioner meets the statutory and regulatory
requirements for licensure and, but for the protests, would have issued
Petitioner’s permit.
The
protestants did not appear at the hearing and therefore, presented no testimony
or evidence as to why the permit should not be granted.
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 Petitioner’s on-premise retail beer and wine
permit is hereby granted and the Respondent is directed to issue the same, upon
the payment of all required fees.
March 19, 2009
Columbia, SC |
____________________________________
John D. McLeod, Judge
S.C. Administrative Law Court |
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