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 an on premises beer and wine permit because of timely filed protests by Mrs. Annie A. Jamison.

By letter dated May 7, 2010, Petitioner requested an expedited hearing due to the approaching expiration date of his temporary license.  The case was assigned to the undersigned Judge on May 19, 2010, and the hearing on this matter was held at 2:00 p.m. on Wednesday, May 26, 2010 at the offices of the ALC in Columbia, South Carolina. All parties appeared at the hearing, along with Protestant Mrs. Annie A. Jamison.

After listening to the testimony and weighing all the evidence presented at the hearing, this Court finds that Petitioner’s beer and wine permit shall be granted. 

FINDINGS OF FACT

Having observed the testimony of the witnesses 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 permit for Goff Ave Convenience Store located at 1697 Goff Avenue, Orangeburg, 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 beer and wine permit.  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 beer and wine permit and that it would have granted the application but for the protest.

7.                  Petitioner is sixty-five (65) years old and is a retired U.S. Army disabled veteran. He retired from the New York City Department of Corrections as a Captain after eighteen (18) years of service.  The hours of operation of the proposed location are Monday through Thursday 5:00 p.m. to 9:00 p.m. On Fridays, the convenience store closes at 2:30 a.m. and on Saturdays at 12:00 a.m.  The store is closed on Sundays.  The location can seat up to 60 people,[1] and it has a kitchen that serves a variety of food consisting of chicken, fish, french fries, potato salad, and stone stew. There have been no problems with underage drinking and sufficient security is in place.  Petitioner’s cousin assists with checking I.D.’s and they know most of their customers.  There is sufficient parking in the driveway of the location as well as along Stilton Road and in the vacant lot located across Goff Avenue.  Petitioner does play live music on his patio on Friday nights, but noise has not been a problem for neighbors.  Petitioner cleans his convenience store daily and disposes of all trash.

8.                   There is an alternative school two and a half blocks from the Goff Avenue Convenience Store as well as a church half a block away.  The location meets all distance limits imposed by law.

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 permit.  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 has been permitted for at least the past five years and that the Petitioner has sold beer and wine there without incident on a temporary permit for approximately 110 days. The location is suitable for Petitioner’s operation and it will not be detrimental to the welfare of the surrounding community.  Therefore, Petitioner’s license shall be issued. 

IT IS THEREFORE ORDERED that the beer and wine permit is hereby granted.

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