ORDERS:
FINAL ORDER
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) and § 61-4-525 (Supp. 2004) for a contested case hearing. Marilyn Rayford, d/b/a Brown Suga Lounge (Petitioner) seeks an on-premises beer and wine permit for its location at 201 Branch Street, Abbeville, South Carolina (location). Reverend Bobby S. Cutter (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 September 6, 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 Marilyn Rayford, d/b/a Brown Suga Lounge, seeks an on-premises beer and wine permit for its location at 201 Branch Street, Abbeville, South Carolina (location).
4. Marilyn Rayford is over the age of twenty-one (21) and is a legal resident of the State of South Carolina. She resides and maintains her principal place of abode in the State of South Carolina, and has for at least thirty (30) days prior to making this application for a beer and wine permit.
5. Marilyn Rayford is of good moral character and has not had a permit or license revoked within the last two (2) years. Marilyn Rayford does not have a criminal record.
6. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
7. Petitioner plans to operate from 4:00 p.m. until 12:00 a.m. on Wednesdays and Thursdays. Petitioner plans to open for business at 4:00 p.m. on Fridays and Saturdays, and remain open until 2:00 a.m. the following morning. Petitioner plans to cease the sale of beer and wine at 11:59 p.m. on Saturdays.
8. There are adequate bathroom facilities, exits, and fire extinguishers.
9. Marilyn Rayford plans to manage the location, with assistance from family and friends, while she also maintains a full time job elsewhere.
10. Reverend Bobby S. Cutter filed a protest to the application. Reverend Cutter testified at the hearing. His concerns were based primarily upon a past history of incidents occurring both at this location when it was under previous ownership and at locations in the area. These locations have or had beer and wine permits.
11. Reverend Cutter is also concerned with the fact that this location is 250 feet from his Sunday School classrooms. Reverend Cutter states the area has problems with drug use, alcohol misuse, and prostitution. He states the area is a crime prone area.
12. Marilyn Rayford testified that there are six churches in the area, and that she contacted each of them. She also testified that Reverend Cutter was the only person to speak out in opposition of the proposed business.
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 Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
9. In reviewing an application for a beer and wine permit and for a minibottle license, two "proximity" statutes are pertinent. One statute covers beer and wine permits while a second addresses only liquor licenses. For a beer and wine permit, the proximity to residences, schools, playgrounds, and churches is a mandatory consideration. S.C. Code Ann. § 61-4- 520(7) (Supp. 2004). Indeed, for a beer and wine permit, the sole factor of an improper proximity to any of the protected institutions of residences, schools, playgrounds, and churches is a proper basis for denying a beer and wine permit. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). However, no absolute prohibition measurements are set by the beer and wine statutes since the law is well settled that the 300 and 500 feet distances apply only to liquor licenses, not to beer and wine permits. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, 303 (1972). Thus, deciding whether the proximity is improper for a beer and wine permit must be made on a case by case basis resting upon the peculiar facts of each permit request.
10. Certainly, one must respect the moral grounds of an individual to abstain from the purchase and consumption of alcohol and the right not to be disturbed by those who do chose to buy and drink beer, wine, or liquor. Corwin v. Bd. of Liquor Control, 164 N.E.2d 412 (Ohio 1960) ("We would not imply that an objection to the issuance of a permit on moral grounds should be ignored by the director in determining the advisability of issuing the permit. The opposition of many religious denominations to the sale and use of intoxicants is a commendable one that should not be lightly regarded."). However, the suitability of a proposed location for the sale of alcoholic beverages cannot be found wanting based only on the religious convictions of opponents to an application. Rather, in South Carolina, the sale of alcoholic beverages is a lawful enterprise which is regulated by the State. One aspect of that regulation is a determination that the proposed location will be a proper one.
11. As to a beer and wine permit, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or playgrounds is a basis for denying such a permit. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Here, after considering all of the factors in this case, no improper proximity to the church exists.
In deciding whether the proximity is improper, the purpose and intention sought to be accomplished by the statute is instructive. Dorchester County Dep’t of Soc. Serv. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App. 1996) (cardinal rule of statutory construction is to ascertain and effectuate the intention of the legislature). While the General Assembly in S.C. Code Ann. § 61-4-520 (Supp. 2004) did not explicitly state the purpose to be served by imposing a "proximity" requirement in reference to churches and schools and other institutions and activities, courts in other states with similar laws have explained that such a statute seeks to protect the identified institutions and activities. City of Bastrop v. Johnny's Pizza House, Inc., 712 So.2d 156, (La.App. 2 Cir. 1998) (such statutes seek to ensure that "persons in or entering those protected places will neither have ready access to businesses selling alcohol nor be subjected to viewing or participating in incidents which frequently occur in and around premises where intoxicating beverages are sold."); Taylor Drug Stores, Inc. v. Indiana Alcoholic Beverage Com'n, 497 N.E.2d 932 (Ind.App. 1 Dist. 1986) (such statutes are designed to create "a protective zone from disruption associated with a 'premises' seeking a permit to dispense alcoholic beverages."); Big Bear Markets of Michigan, Inc. v. Michigan Liquor Control Comm’n, 345 Mich. 569, 77 N.W.2d 135 (Mich. 1956) (purpose of the statute is "to protect churches and schools of the State from detriment resulting from proximity to places of business in which intoxicating beverages are sold."). Obviously, determining when that protection has been breached to such an extent that a denial is mandated requires a case by case determination based on the individual facts established.
12. Although the concerns of the Protestant are understandable, and although the Protestant exhibited great credibility in his opposition to the consumption of beer and wine at this location and the possible effects on the community, I find that the central concerns are general moral opposition.
13. The facts of the instant case simply fail to show how the proposed location will impose a breach of protection sufficient to deny the permit and license. The surrounding area and extended vicinity already house businesses providing beer and wine as well as liquor. Thus, denying the current application will not provide meaningful protection to the church since the area is already extensively alcohol-present. Although there are churches 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.
14. Notwithstanding the testimony of Reverend Cutter, I find that the location is not unreasonably close to any residence, school, church or playground. There are several other businesses in the immediate area that have beer and wine permits. Reverend Cutter moved his church to its current location four years ago, knowing these types of businesses were present in the immediate area.
15. Petitioner meets the statutory requirements for holding an on-premises beer and wine permit at the location. Accordingly, I find that the location is suitable for an on-premises beer and wine permit and that the permit should be granted.
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 Marilyn Rayford, d/b/a Brown Suga Lounge, is GRANTED.
AND IT IS SO ORDERED.
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JOHN D. MCLEOD
September 6, 2005 Administrative Law Judge
Columbia, South Carolina |
