STATEMENT OF THE CASE
This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. §61-2-90 (Supp. 2008) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2008) for a contested case hearing. The Petitioner, Robert W. Harbiston, d/b/a B&L Liquors (“Establishment”) seeks a retail liquor license (“License”) for the establishment located at 5325 Park Forest Parkway, Ste. D., North Charleston, South Carolina. The Protest of Jen Pfeffer was timely received on September 4, 2008. (“Protestant”). The concerns of Protestants Lillian H. Sarine and Hal M. Armstrong were timely received by the Department on August 4, 2008. These Protestants were granted the right to Intervene by Order of this Court dated February 12, 2009. The South Carolina Department of Revenue (“Department”) determined that but for the timely protest, the license and permit would have been issued because Petitioner met all other statutory requirements. A hearing on the merits of this case was held on April 20, 2009 at the Administrative Law Court in Columbia, South Carolina. Notice of the time, date, place, and subject matter of the hearing was provided to all parties prior to the hearing date. All parties listed above were present at the hearing.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in this matter and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks a retail liquor license for the establishment known as B&L Liquors, located at 5325 Park Forest Parkway, Ste. D., North Charleston, South Carolina. Petitioner was denied a license by a Final Agency Determination dated November 28, 2004, on the basis that Petitioner was delinquent on his state taxes and timely Public Protests to the issuance of his license were filed.
2. The Department waived the issue of delinquent taxes at the hearing on the basis that Petitioner has paid his state taxes in full as of the date of the hearing. The Department stated that it would have granted the license with a proviso that Petitioner stay current on his taxes, but for the timely filed Public Protests.
3. Notice of the application was lawfully posted for fifteen days at the location, and notice of the application was also published in a newspaper of general circulation in the area for three consecutive weeks.
4. The concerns of Protestants Lillian H. Sarine and Hal M. Armstrong were timely received by the Department on August 4, 2008. These Protestants were granted the right to Intervene by Order of this Court dated February 12, 2009. The Protest of Jen Pfeffer was timely received on September 4, 2008.
5. The Intervenors objected to the issuance of the license on the basis that the community is already adequately served by retail liquor stores and that the Applicant does not meet the qualifications due to apparent criminal background and financial history.
6. With respect to Petitioners financial history, the Intervenors argue that S.C. Code 61-6-950 demands a suspension and/or revocation of a license where the permit holder is indebted to licensed wholesalers of alcoholic liquors. Intervenors solicited the testimony from three different wholesalers. While it is true that all of the witnesses stated that Petitioner has bounced checks with them in the past, they all testified that Petitioner is current with his payments to them. Moreover, the attorney for the Department testified that the Department has never suspended or revoked a license under this statute and that they have never suspended or revoked Petitioner’s current liquor license on this basis. Therefore, I find that Petitioner’s application is not denied on this basis.
7. As to the criminal history, Petitioner was arrested for two separate misdemeanors in the past five years. However, he was not convicted of either of these offenses. Therefore, Petitioner’s application is not denied on this basis.
8. The Majority of the Protestant and Intervenors case was by testimony from Protestant Jen Pfeffer. Ms. Pfeffer testified that she is a resident of Marsh Hall subdivision and a real estate agent in the area. Ms. Pfeffer testified that the location is unsuitable for a liquor store because it is: (1) located at the entrance of a subdivision; (2) located near a bus stop; (3) located near a childcare facility; and (3) located near a ball field. While I understand Ms. Pfeffer’s concerns about the proximity of the liquor store to these places, the SLED report shows that there is adequate distance between these locations and the proposed liquor store. Moreover, the Establishment is located perpendicular to a busy highway (Dorchester Highway) in a highly commercialized area. The Yummy Yummy restaurant next door to the proposed location has a beer and wine permit and the Publix across the highway also holds a beer and wine permit. Both of these locations would be open later than the liquor store, which is required to close at 7:00PM.
9. Petitioner testified that he owns one other liquor store that is currently licensed and has held a liquor license for nine years. He has owned four stores, including the store at this proposed location. At the other stores, he has only received two violations in the past ten years. The first violation was for selling to an underage individual in 1999. The second violation was for having cases of liquor stacked too close to the window of his store.
10. Protestants Lillian H. Sarine and Hal M. Armstrong were represented by attorney Jim Griffin at the hearing. Although Sarine and Armstrong did not testify, testimony was introduced that Mr. Armstrong owns a liquor store on the other side of Dorchester Highway and that Mr. Armstrong protested Harbiston’s other liquor license, which he acquired nine years ago.
11. Although Protestants were very steadfast in their opposition to the proposed location, and they presented some specific reasons why this particular location should not be licensed, most of their concerns were conjectural. For example, Ms. Pfeffer testified that property values in the adjacent neighborhood might be reduced by the proximity of a retail liquor store. However, the photographs show that the proposed location is in a new strip shopping center that is composed of brick and is a commercial grade construction. Moreover, Ms. Pfeffer testified that she had knowledge that two shopping centers would be constructed in close proximity to the neighborhood prior to buying her home. Since the second shopping center was never built because of the climate of the economy, there is less commercial traffic in the area than Ms. Pfeffer should have expected when she bought her home. I find that the location is suitable for a retail liquor store because Intervenors and Protestant did not prove by a preponderance of the evidence that the location was unsuitable.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court has jurisdiction in this
matter pursuant to S.C. Code Ann. §61‑2‑260 (Supp. 2008).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).
3. The applicant has complied with all the provisions of S.C. Code Ann. §61‑4‑520 regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61‑4‑520(6).
4. Licenses and permits issued by the State for the sale of beer, wine, and liquor are
not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
5. 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).
6. 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 a beer and wine permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.
7. Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a location is not necessarily a function solely of geography. 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). Any evidence adverse to the location may be considered. Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
8. The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer wine and liquor, did not object to the granting of a permit in this case. I find that this location is suitable for the retail liquor license.
