ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code
Ann. §61-2-90 (Supp. 2003) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2003) for
a contested case hearing. The Petitioner, Sea Island Wine and Gourmet Market, LLC, (Sea
Island) is a gourmet market and restaurant, located at 403 Carteret Street, Beaufort, SC. Sea
Island seeks an on-premise beer and wine permit for the establishment. The Department of
Revenue (Department) filed a Motion to be Excused setting forth that but for the protest received
from Reverend D. M. Houston (Houston), this permit would have been issued. This motion,
however, was denied by Order dated December 15, 2004. Rev. Houston filed a Motion for
Leave to Intervene and for Continuance on January 14, 2005. This motion was granted by Order
dated January 14, 2005. A hearing on the merits of this case was held on January 27, 2005, at
the offices of the Court in Columbia, South Carolina. Notice of the time, date, place, and subject
matter of the hearing was provided to all parties. The parties were present as indicated above.
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. The Petitioner seeks an on-premises beer and wine permit for the establishment
known as Sea Island Wine and Gourmet Market, located at 403 Carteret Street, Beaufort, South
Carolina. Sea Island Wine and Gourmet Market is an up-scale deli and gourmet market which
sells imported meats, cheeses, specialty foods and wine by the bottle. Many of the products
cannot be purchased elsewhere in the area. It has a small area for dining which can
accommodate approximately 20 people. The Petitioner imposed a two glass limit on wine sold
at the location.
2.The normal hours of operation would be 10:00 AM to 6:00 PM, with occasional
later night wine tastings or other group functions, which would be completed by 9:00 PM. There
are no plans to advertise alcohol, and wine by the glass is not even mentioned on the menu.
3.Notice of the application was lawfully posted for fifteen days at the location, and
notice of the application also ran in a newspaper of general circulation in the area. The protest of
D. M. Houston was timely received by the Department.
4. Petitioner is a legal resident of the State of South Carolina and meets all
requirements for a beer and wine permit.
5. The Petitioner has no criminal record and is of sufficient moral character to
receive a beer and wine permit.
6. The location has been permitted previously for the on-premises sale of beer
and wine. The prior owner had an on-premises permit. The Department determined, however,
during its investigation of this application, that the previously issued “on-premises permit”
should have been an “off-premises permit.” The prior owner and the Protestant (Rev. Houston
in both cases) had reached an agreement that the Protestant would withdraw his protest if the
prior owner would change his application to an off-premises permit. The department erred in
entering the on-premises permit to the prior owner. This applicant has been operating under a
120 day temporary permit.
7.The Protestant, Reverend Houston, has concerns about the possible negative
influence the presence of alcohol consumed on premises will have on the Carteret Street United
Methodist Church and its programs.
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. 2003).
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) and (7).
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, 278 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. The proximity of a location to a church,
school or residences is a proper ground by itself upon which the location may be found to be
unsuitable and a license denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653
(1991). 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.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. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d
301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Rev. Houston testified that
he was not aware of any violations or complaints against the applicant, other than the general
objection of church members to an on-premises location in close proximity to the church.
9.Much of the Protestant’s arguments against the granting of the license sought
herein are that he does not want this type of business, i.e., a business that serves wine at the
location “in the shadow of the church.” However, an 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).
10.The applicant appears to run a quality store and meets the needs of her customers.
I found her to be a very credible witness who exercised due diligence in investigating the
business prior to her purchase. Beaufort is growing as a tourist region and retirement area, and
many of these people will want the kind of services that the applicant can provide. Based on the
totality of the circumstances, it appears that the applicant runs an elegant establishment which
will not be a problem in the neighborhood. It is not a “bar.” The sale of wine by the glass is a
service offered to her customers who wish to have a glass of wine with their lunch and which
may generate more income by a subsequent sale of a bottle of that wine.
11.The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer
and wine, did not object to the granting of a permit in this case. I find that this location is
suitable for the on-premises sale of beer and wine.
12.Although the concerns of Houston are understandable, and the witness
exhibited great credibility in his opposition to the on premises sale of wine, along with concerns
about its effect on some of the people involved in the church’s missions, I find that the central
concerns are general moral opposition, and not directed to any specific problems with
Petitioner’s location. I find that this location shall be permitted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on-premises beer and wine permit is
GRANTED upon payment of any required fees and costs by the Petitioner to the Department.
The Department of Revenue shall then issue an on-premises beer and wine permit to the
Petitioner.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 31, 2005
Columbia, South Carolina |
