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. 2004) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2004) for a contested case hearing. The Petitioner, Regina Sanders, is the owner of a snack bar and arcade known as The Long Branch. She seeks an on-premises beer and wine permit for the establishment. The Department of Revenue (Department) stated that but for the protests received, this permit would have been issued. A hearing on the merits of this case was held on September 22, 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 and protestants at least thirty (30) days prior to the hearing date. The parties and protestants 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 Petitioners seek an on-premises beer and wine permit for the establishment known as The Long Branch, located at 20 Long Branch Road, Georgetown, South Carolina.
2. 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.
3. Petitioner is a legal resident of the State of South Carolina and has been for more than thirty days.
4. The Petitioner has no criminal record and is of sufficient moral character to
receive a beer and wine permit.
5. The location has been permitted previously for the sale of beer and wine by Mr.
Albert Beach. There were numerous complaints from the neighbors during Mr. Beach’s
ownership.
6. Petitioner runs an arcade/snack bar. She is open on the weekends at 9 PM when
she is working in Georgetown. If she does not have to work in Georgetown, she will open earlier. The location has a capacity for 30—35 people. She does not plan to have live music and there is adequate parking around the building. The location is off the highway, down a dirt road in a primarily residential area.
6. The Protestants all feel that the arcade/snack bar does not benefit their community. They are concerned for the safety of the people in their small community, and the fact that the proposed location is in a neighborhood, although the neighborhood has other licensed locations. They are concerned that whoever is running the location will be unable to control the clientele and that drugs, fights and guns will be prevalent. They testified that despite Mr. Beach and Ms. Sanders’ assertions that Mr. Beach is not involved in the operation of The Long Branch, it appears that he is still involved and that the same problems which existed while he has held the permit will continue.
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. 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. 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).
9. Much of the Protestants’ arguments against the granting of the license sought herein is that they do not want the clientele that this type of business attracts in their neighborhood. An aversion to the sale and consumption 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 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 renewal of the permit in this case. The Georgetown County Sheriff’s department did not file a valid protest to this location, despite the Protestants’ allegations of law enforcement problems in the area. I find that this location is suitable for the on‑premises sale of beer and wine with the restrictions imposed below.
11. Although the concerns of the Protestants are understandable, and the witnesses
exhibited great credibility in their opposition to the clientele that this location may attract and the possible detrimental effects on the community, I find that the central concerns are general moral opposition, and not directed to any specific problems with Petitioner’s ownership. I find that this
location shall be permitted, subject to the following restrictions:
The hours of operation shall be from 8:00 PM to 12:00 AM Thursday, Friday and Saturday.
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.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premises beer and wine permit to the Petitioner, subject to I find that this location shall be permitted, subject to the following restrictions:
The hours of operation shall be from 8:00 PM to 12:00 AM Thursday, Friday and Saturday.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
November 4, 2005
Columbia, South Carolina |
