ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. §§ 1-23-310 et seq. (Supp. 2004), § 61-2-260 (Supp. 2004), § 61-4-520 (Supp. 2004),
§ 61-4-525 (Supp. 2004), and § 61-6-2010 for a contested case hearing. Majid Mustafa Sawalha,
d/b/a Midland Market, 2599 Midland Park Road, North Charleston, South Carolina (location)
seeks a seven day off-premises beer and wine permit. Rhonda Jerome (Protestant) filed a protest
to the application with the South Carolina Department of Revenue (Department). Because of the
protest, the hearing was required.
Petitioner had a temporary off-premises beer and wine permit issued during the pendency
of this application. Because the temporary permit expired on February 17, 2005, the
undersigned granted Petitioner’s request for an expedited hearing. The hearing in this matter was
held on March 9, 2005, at the offices of the Administrative Law Court in Columbia, South
Carolina. Both parties and the Protestant appeared at the hearing. Evidence was then introduced
and testimony was given. After carefully weighing all the evidence, the Court finds that a seven
day off-premise beer and wine permit for this location should be granted.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties, I make
the following Findings of Fact by a preponderance of evidence:
1.The ALC has personal and subject matter jurisdiction.
2.Notice of the time, date, place and subject matter of the hearing was timely given
to all the parties and the Protestant.
3.Petitioner Majid Mustafa Sawalha seeks a seven day off-premises beer and wine
permit for his location at 2599 Midland Park Road, North Charleston, South Carolina.
4.Petitioner is over twenty-one (21) years of age. He is a legal resident of the
United States and is a legal resident of the State of South Carolina. Petitioner resides and
maintains his principal place of abode in the State of South Carolina, and has for at least thirty
(30) days prior to making his application for a beer and wine permit.
5.Petitioner possesses good moral character and has never been convicted of a
crime.
6.Petitioner has never held a permit or license for the sale of alcoholic liquors or
beverages. However, Petitioner has worked as a manager of a grocery store where beer and wine
were sold for off-premises consumption.
7.Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
8.The location is a convenience store that operates from 9:00 a.m. to 10:00 p.m.
Monday through Saturday, and from 9:00 a.m. to 8:00 p.m. on Sunday. Petitioner sells items
such as canned goods, chips, drinks, cigarettes and ice cream at the location. He does not sell
gasoline. The location was permitted for the sale of beer and wine by the previous owner.
9.The convenience store is a brick building that is approximately one thousand
(1,000) square feet. There are six (6) parking spaces at the location. There are no pool tables
and no music is played at the location. The exterior of the building has adequate lighting and
Petitioner collects all litter outside of the store on a daily basis.
10.Petitioner is the sole employee and is present at the location at all times of
operation. Petitioner lives approximately four hundred (400) feet from the location.
11.The location is situated on Midland Park Road in North Charleston, South
Carolina, and is surrounded by a primarily residential area. There is a house next door to the
location and an apartment complex and day care near the location. An elementary school is
located approximately eight hundred (800) yards from the location and there are two churches in
the general vicinity. There are also three other convenience stores located approximately one
half (½) mile from the location that sell beer and wine for off-premises consumption.
12. Protestant Rhonda Jerome questions the suitability of the location, citing
concerns for the amount of crime in the area. Ms. Jerome is a member of the North Charleston
City Council. She is the representative for District Two in North Charleston, which is the
district across the street from the location. Ms. Jerome lives in District Two, approximately one
quarter (¼) of a mile from the location.
13.Ms. Jerome testified that she is concerned that Petitioner’s store will contribute to
ongoing drug problems in the area and the surrounding residential neighborhood. However, Ms.
Jerome also testified that the location is in an area that is zoned for general business and since
Petitioner began operating the location there have been no litter problems outside.
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. 2004) 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. 2004) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. §§ 61-4-520 and 61-6-2010 (Supp. 2004) authorize and set forth
the requirements for the issuance of a seven day beer and wine permit.
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 a hearing 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 v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). 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. 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).
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
45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119
(1981).
8.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. Rather, they are privileges granted in the exercise of the state’s police power
to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance
of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v.
S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9.Petitioner meets all the statutory requirements for holding a beer and wine permit
at the location. Petitioner has experience working in beer and wine sales and has operated his
location without incident thus far. The location is also not unreasonably close to any school or
church. Although there are many residences surrounding the location, the location is in an area
that is zoned for general business. Furthermore, there are three other convenience stores located
within one half (½) mile from the location that also sell beer and wine for off-premises
consumption.
There was no evidence presented at the hearing that the granting of an off-premises beer
and wine permit for the location would have any detrimental impact on the community. The
testimony of the Protestant at the hearing consisted only of possible and not probable adverse
impacts that the beer and wine permit would have in the community. The Court is not inclined
in this case to deny the permit based upon such conjecture. Therefore, I find that there are no
adverse consequences in granting a permit to the location for the sale of beer and wine which
will be consumed elsewhere and not at the location.
For all of these reasons, I find and conclude that the request by Petitioner for a seven day
off-premises beer and wine permit at the location should be granted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the request for a seven day off-premises beer and wine permit for Majid
Mustafa Sawalha, d/b/a Midland Market, 2599 Midland Park Road, North Charleston, South
Carolina is GRANTED.
AND IT IS SO ORDERED.
____________________________
Marvin F. Kittrell
Chief Administrative Law Judge
April 1, 2005
Columbia, South Carolina |
