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. (Supp. 2004), § 61-2-260 (Supp. 2004), § 61-4-520 (Supp. 2004)
and § 61-4-525 (Supp. 2004) for a contested case hearing. Coley Inc., d/b/a Oasis Ridge Club
(Petitioner), seeks an on-premises beer and wine permit for its location at 74 Tanglewood Lane,
Great Falls, South Carolina (location). Sheriff Herman W. Young (Protestant) filed a protest to
the application with the South Carolina Department of Revenue (Department). Because of the
protest, the hearing was required.
A hearing in this matter was held before me on February 9, 2005 and continuing 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, I find that Petitioner’s request
for an on-premises beer and wine permit 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, Coley, Inc., d/b/a Oasis Ridge Club seeks an on-premises beer and
wine permit for its location at 74 Tanglewood Lane, Great Falls, South Carolina (location).
4.Coley, Inc. is a domestic South Carolina for-profit corporation currently in good
standing with the Secretary of State. It is owned by Grace E. Coley, Sammy J. Coley, and their
daughter Rebecca “Becky” Boulware. Grace E. Coley is a director and officer of Coley Inc. as
well as its registered agent and bookkeeper. Sammy J. Coley is an officer of Coley, Inc. and he
manages its properties. Rebecca Boulware is a director and president of Coley Inc.
5.Ms. Boulware and Mr. and Mrs. Coley are all over the age of twenty-one (21) and
are legal residents of the State of South Carolina. They reside and maintain their principal place
of abode in the State of South Carolina, and have for at least thirty (30) days prior to making this
application for a beer and wine permit.
6.Ms. Boulware and Mr. and Mrs. Coley are of good moral character, and
neither they nor Coley Inc. have had a permit or license revoked within the last two
(2) years.
7.Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
8.The location opened in December 2004.
It is a convenience store/club
that operates from 3:00 p.m. until midnight, Monday through Saturday. It is
occasionally open on Sunday. The store sells items such as candy, gum, sodas,
canned foods, saltines, hot dogs, and hamburgers.
9.There are three separate rooms inside the location, including a kitchen, a
room that contains video game machines, and one that has two pool tables. There is
insufficient space for any additional pool tables. There is no jukebox and no live
music at the location. The location has sufficient parking for approximately ten (10)
vehicles.
10.Coley, Inc. is the owner of several other locations, including a
convenience store in Eastover, South Carolina, a store near Carowinds in York
County, and a convenience store/club in Winnsboro, South Carolina.
11.Bradley G. Bennett will manage the location and will be present at the
location every day. In addition to handling the day to day operations, Mr. Bennett
will also be responsible for ordering supplies for the location under the direction of
Mr. Coley. Mr. Bennett’s wife, Tammy, will also work at the location with him. Mr.
Bennett will work at the location as an independent contractor with Coley, Inc., and if
the permit is granted and the location is reopened, he will receive thirty-five percent
(35%) of the net profits of the location as compensation.
Mr. Bennett is of good
moral character.
12.Coley, Inc. owns all stock, supplies, pool tables, equipment, furniture and
other items of personal property at the location.
13.Sheriff Herman W. Young of the Fairfield County Sheriff’s Department
filed a protest to the application. Both Sheriff Young and Chief Deputy Keith Lewis
testified at the hearing. Their concerns were based primarily upon a past history of
incidents occurring both at this location when it was under previous ownership and at
a location across the street, which is now closed. Both of these locations were
permitted for the sale of alcoholic beverages. However, there have been no calls for
service to this location since Coley, Inc. began operating it in December 2004.
14.Chief Deputy Lewis also had concerns because the location is in a rural
area in the northeastern part of Fairfield County, close to the Chester County line. He
testified that many of the incidents that occurred at these two locations in the past
involved individuals from outside of the county, with most occurring after midnight.
Furthermore, he was concerned that the location was too close to several residences
in the area.
15.Notwithstanding the testimony of Chief Deputy Lewis, I find that the
location is not unreasonably close to any residence, school, church or playground.
16.The proposed location is suitable for the sale of beer and wine on-premises with the restrictions set forth below.
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 (Supp. 2004) sets forth the requirements for the
issuance of a 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 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 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.Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2004) authorizing the
imposition of restrictions on permits, provides:
Any written stipulation and/or agreement which is voluntarily entered into by an
applicant for a permit or license between the applicant and the Department, if
accepted by the Department, will be incorporated into the basic requirements for
the enjoyment and privilege of obtaining and retaining the permit or license and
shall have the same effect as any and all laws and any and all other regulations
pertaining to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute
sufficient grounds to revoke said license.
10. With the restrictions set forth below, Petitioner meets the statutory requirements
for holding an on-premises beer and wine permit at the location. Although there are residences
near the location, the evidence does not establish that an on-premises beer and wine permit
would have an adverse impact on the surrounding community. Furthermore, any objections
expressed by the Sheriff’s Office arose from issues regarding this location when it was
previously operated by another person or entity. Coley, Inc. has operated this location since
December 2004 without incident and cannot be held accountable for problems that occurred at
this location under previous ownership. The Court is also impressed with Mr. Coley’s “hands-on” management style at each of the locations owned and operated by Coley, Inc. Accordingly,
I find that the location is suitable for an on-premises beer and wine permit and that the permit
should be granted with the restrictions below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premises beer and wine permit of Coley, Inc.,
d/b/a Oasis Ridge Club is GRANTED upon the Petitioner signing a written agreement with the
South Carolina Department of Revenue agreeing to the restrictions that are set forth below:
RESTRICTIONS
1.Petitioner shall not sell beer or wine after 10:00 p.m. each night.
2.Petitioner shall open the location no earlier than 3:00 p.m. and close no
later than 10:00 p.m. each night.
3.Petitioner and its employees/independent contractors shall prohibit loitering and
the consumption of beer and wine in the parking lot area of the location.
4.Live bands and disc jockeys are not permitted at the location, and no music
played on the outside of the location is permitted.
5.Petitioner must maintain proper lighting around the exterior of the location.
IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be
considered a violation against the permit and may result in a fine, suspension, or revocation of
the permit.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
April 6, 2005
Columbia, South Carolina |
