ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-4-520 (Supp. 2004) for an expedited contested case hearing. The Petitioner seeks an on-premises beer and wine permit and sale and consumption (mini-bottle) license for the location at 6312 Edmund Highway, Lexington, South Carolina. This matter is presently before the Court because of a protest by several concerned citizens and Edmund First Baptist Church. The Church moved to intervene in this matter; this motion was granted by my order of May 26, 2005. After notice to the parties and Protestants, a hearing was conducted on July 21, 2005 in Columbia, South Carolina. At the hearing, the parties, their counsel and Protestants were present as indicated. I find and conclude that the license and permit requested by the Petitioner shall be granted as outlined below.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and having 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 and mini-bottle license
for the location known as Joe’s Custom Brickwork, Inc., d/b/a Roadkill Cafe and Convenience Store, located at 6312 Edmund Highway, Lexington, South Carolina. This location is a restaurant with some convenience items for sale, and has held a beer and wine permit in the past.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements and would have granted the license and permit but for the protests.
3. The principal of the applicant is of good moral character. The State Law Enforcement Division’s criminal background investigation revealed no criminal convictions.
4. The Petitioner is a validly incorporated South Carolina corporation in good standing.
5. Notice of the application appeared in The Chronicle, a newspaper of general
circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted at the proposed location for fifteen days.
6. Once renovations are completed, the proposed location will have seating for 40
people. The building will be soundproofed so that live bands will not disturb the neighbors. The restaurant will be open on Sundays from 1:00 PM to 10:00 PM and during the week.
7. The concerns of the church deal primarily with the manner in which the
measurements were taken to determine the distance between the location and the church. State Law Enforcement Agent Ed Smith testified that he measured the distance between the church and the proposed location as he has done for the last ten years in compliance with the statute and regulations.
Agent Smith, who has been a SLED Agent for 33 years, has been in the Alcohol Investigation Division for more than ten years. He is the Alcoholic Beverage Licensing agent for five counties. He testified that, using a wheel similar to a bicycle wheel, he measured the distance straight from the front entrance down the white line at the edge of Highway 302 to the center of the driveway of the Church. He then measured to the Church’s front door, which totaled 517 feet. There was a straight line from the public thoroughfare to the front door.
I find that Mr. Smith is a very credible witness who is thoroughly familiar with the requirements of the statute and the regulation. He has measured several hundred locations during his tenure at SLED. Given the angled position of the church, Mr. Smith measured consistently with his usual methodology.
8. Mr. Arthur E. White, a registered Land Surveyor and Attorney, also measured the distance and testified at the hearing on behalf of Edmund Baptist Church. According to his measurement, the distances totaled 462 feet. Mr. White testified that he measured to the Highway 302 right-of-way, not to the church door.
Mr. White was also a very credible witness, and well-qualified to measure distances. He provided an accurate measurement if the right-of-way is the reference point utilized. However, he conceded that vehicular traffic will stay on the road, and that the statute does not reference the “Right-of-Way”. Essentially, Mr. White and Mr. Smith employed different methods for measuring the distances.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Court has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004).
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. Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).
4. It is also the fact finder’s responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered.
5. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
6. 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 alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
7. S.C. Code Ann. § 61-4-525 (Supp. 2004) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written protest.
8. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
9. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2004) are met. That section requires that a mini-bottle license be granted only to a bona fide business engaged in either the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not only must the principals and applicant be of good moral character but the business must also have a reputation for peace and good order.
S.C. Code Ann. § 61-6-20(2) (Supp. 2004) sets forth:
‘Bona fide engaged primarily and substantially in the preparation and serving of meals’ means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.
In order to meet the requirements of Section 61-6-20(2), the location must also meet the requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2004). Additionally, Section 61-6-1820 also provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, or playgrounds as set forth in S.C. Code Ann. § 61-6-120 (Supp. 2004).
10. 23 S.C. Code Ann. Reg. 7-303 sets forth the specific measurements from Location to School, Church or Playground.
7-303. Measurements from Location to School, Church or Playground.
Section 61-6-120, provide that a retail liquor license or a possession and consumption license may not be granted if the place of business is within three hundred feet of any church, school, or playground situated within a municipality, or within five hundred feet of any church, school, or playground situated outside of a municipality. This Regulation is for the purpose of further clarifying the distance and how it shall be measured. (emphasis added.).
With respect to a church or a school, the distance shall be measured from the nearest entrance of the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is the closer. The South Carolina Department of Revenue has determined that the grounds in use as part of the church or school is restricted to the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemeteries, or any purpose other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings. Only one entrance to the grounds of a church or school shall be considered, to wit: the entrance to the grounds nearest an entrance to the church or school building. Where no fence is involved, the nearest entrance to the grounds shall be in a straight line from the public thoroughfare to the nearest door. The nearest point of the grounds in use as part of a playground shall be limited to the grounds actually in use as a playground and the grounds necessary for ingress or egress to such grounds from the public thoroughfare. (Supp. 2004) (emphasis added.).
11. The language in both the statute and the regulation, which refer to “ordinary
pedestrian and vehicular traffic” is inherently ambiguous. However, Mr. Smith testified that he performed the measurement for this location as he has other locations for over ten years. The Supreme Court has held that
The scope of judicial review of agency decisions is governed by S.C. Code Ann. §1-23-380 (A)(6) (Supp. 2001). “The construction of a statute by the agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons.” Dunton v. South Carolina Bd. Of Examiners in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987).
Where the terms of the statute are clear, the court must apply those terms according to their literal meaning. Paschal v. State Election Comm’n, 317 S.C. 434, 436, 454 S.E.2d 890, 892 (1995). An appellate court cannot construe a statute without regard to its plain meaning and may not resort to a forced interpretation in an attempt to expand or limit the scope of a statute. Berkebile v. Outen, 311 S.C. 50, 426 S.E. 2d 760 (1993). Brown v. SCDHEC, 348 S.C. 507, 515, 560 S.E. 2d 410 (2002).
It follows that this same deference should apply to the implementation of the agency’s practice, absent any specific restrictions to the contrary, or a clear abuse of discretion.
12. After considering all the relevant factors, I find that the restaurant’s location is suitable for the on-premises sale of beer and wine and sale and consumption (minibottle) license, upon satisfactory completion of construction and final inspections, including DHEC. Although this court appreciates the concerns of the Protestants and the Church, the fact remains that the SLED agent measured this location as he has all others. His method of measuring was consistent with SLED’s practice of many years’ standing. He was in compliance with the terms of the regulation. The regulation does not specify whether the agent is to proceed parallel to the extended sides of the building or parallel to the property line. I find and conclude that, without a specific indication in the regulation, the measurements in this matter are accurate and the license and permit shall be granted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner’s application for an on-premises beer and wine permit and sale and consumption (minibottle) license upon satisfactory completion of all renovations, inspections and payment of any and all necessary fees.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
August 23, 2005
Columbia, South Carolina |
