ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2009), 61-2-260 (Supp. 2009), and 61-4-525 (Supp. 2009) for a contested case hearing. Petitioner MeMe’s Country Corner, d/b/a MeMe’s Country Corner (Petitioner) seeks an on-premises beer and wine permit for its location at 2649 Robinson View Drive, Hartsville, South Carolina (location). Dennis A. Perdue, Loretta Smith, Mirian Ellis, Luther Amerson, Betty Amerson, Manuel Flowers, Ivy Flowers, Alvin G. Gainey, Jeanne W. Gainey, Margaret Dixon, and Howard Winburn (Protestants) filed a protest to the application with the South Carolina Department of Revenue (Department). Due to the timely filed public protest, a hearing was required.
A hearing in this matter was held before me on May 18, 2010, at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and the Protestants appeared at the hearing. Evidence was introduced and testimony was taken from both the Petitioner and the Protestants. After carefully weighing all the evidence, I conclude that Petitioner’s request for an on-premises beer and wine permit must be granted.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and further taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was timely given to all the parties and the Protestants.
2. Petitioner Troy A. Stengel seeks an on-premises beer and wine permit for the location at 2649 Robinson View Drive, Hartsville, South Carolina. The location is in Darlington County; it is not within the boundaries of a municipality.
3. Petitioner is the applicant for the permit and is half owner of the business at the location, along with his brother Cary J. Stengel. He is over the age of twenty-one. He is a legal resident of the State of South Carolina and has maintained his principal place of abode in this State for at least thirty days prior to making this application. Mr. Stengel is of good moral character and has a reputation for peace in the community.
4. Notice of the application was lawfully posted at the location and in The Hartsville Msngr, a newspaper of general circulation.
5. Petitioner operates a convenience store, game room, tackle shop, and deli at the location. He also serves deli type foods such as sandwiches and barbeque. A game room is also available for the customers.
6. The location has been in operation with an off-premise beer and wine permit for five years without any problems or violations.
7. Petitioner checks the identification of all patrons, and takes necessary precautions against serving alcohol to underage persons in order to comply with the Department’s regulations.
8. Petitioner has held an Auctioneer’s License for 14 years, and an Electronic Benefits Transfer license from the Department of Social Services for over four years with no problems or violations
9. Petitioner and his brother will oversee the property and business, and plan to hire an additional employee to manage the day-to-day business.
10. The Department investigated the application and determined that, but for the public protest Petitioner met the statutory requirements for issuing the permit. However, at the hearing in this matter Troy Stengel testified that he plans to hire a new manager to oversee the day-to-day operation of the business. I find that no investigation into the moral character of the manager has been conducted by the Department.
11. The Protestants’ concern with the granting of the permit is that the licensing of any on-premise alcohol consumption increases the potential for DUI-related automobile accidents. However, a general aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of an application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981).
12. The location is .8 miles from the nearest church, and several miles from the nearest school or playground. The surrounding neighborhood is largely residential.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 2009) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 2009) grants the Administrative Law Court the responsibility to determine contested cases matters governing alcoholic beverages, including beer, wine and liquor.
3. S.C. Code Ann. § 61-4-520 (Supp. 2009) sets forth the requirements for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one.
4. 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. ABC 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 of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct.App. 1984).
5. 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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct.App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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 Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
6. Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The determination of suitability of 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates any adverse effect the proposed location will have on the community. Palmer, supra. It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, in considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Id.
7. Unless there is 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 48 C.J.S. Intoxicating Liquors § 166 (2004).
8. Based upon the evidence presented to the Court, I find that the location is suitable for the issuance of an on-premises beer and wine permit for the type of business planned by Petitioner. The Court is cognizant of the Protestants’ concerns related to driving under the influence of alcohol. However, the denial of a license or permit may never be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for. See, Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 443, 458 S.E.2d 76, 83 (Ct.App. 1995). There is no evidence to substantiate the Protestants’ assertions that the licensing of the location will exacerbate or contribute to the problems about which they testified, and thus the Protestants’ concerns do not provide a sufficient basis to deny the permit. Therefore, I conclude that the location is a suitable one for the permit to sell beer and wine for on-premises consumption.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above, the Court finds that, with the below-noted condition, the Petitioner meets all of the statutory requirements for the issuance of an on-premises beer and wine permit. Therefore,
IT IS ORDERED that the Department shall GRANT Petitioner’s application for an on-premises beer and wine permit for MeMe’s Country Corner, d/b/a MeMe’s Country Corner located at 2649 Robinson View Drive, Hartsville, South Carolina in accordance with S.C. Code Ann. § 61-2-80, § 61-4-540, and § 61-4-520, contingent upon the investigation the moral character of any managers operating the store.
AND IT IS SO ORDERED
_________________________________
Deborah Brooks Durden
S.C. Administrative Law Judge
May 24, 2010
Columbia, South Carolina |
