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, Sandra Crowley, is the
owner of a snack bar known as The Country Store. She serves beer, chips and
sodas at the store. She seeks a renewal of her 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 October 12, 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 protestant at
least thirty (30) days prior to the hearing date. The parties and protestant
were present as indicated above. Based on the evidence before me, I find that
this location should be issued a permit.
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
Petitioner seeks a renewal of an on-premises beer and wine permit for the
establishment known as The Country Store, located at 8069 Hartsville Ruby Road,
Patrick, South Carolina.
2. Petitioner
is a legal resident of the State of South Carolina and has been for more than
thirty days.
3.
The Petitioner has no criminal record and is of sufficient moral
character to
receive a beer and wine permit.
4. The location has been permitted previously for the sale of beer and wine
and the
Petitioner has previously held an
alcohol license or permit. Petitioner runs a small snack bar that serves as a
gathering spot for the local community. Her patrons are mostly local people
(90—95%) and over 40 years old. She is open Wednesday and Thursday from 4—9
PM, Friday from 11 am—11 PM and Saturday from 11 AM—12 AM. The location has a
capacity for 20—30 people. She does not plan to have live music, but does have
a juke box and pinball machines. There is adequate parking in the two acres
that surround the building; a small patio is adjacent to the building with
lighting outside. Her husband polices the parking lot. The location is on the
highway in a rural area.
5. The
Protestant feels that the Country Store does not benefit the community. He is
concerned for the safety of the people in the small community, and the fact
that the proposed location does not sell groceries that would benefit the
community. Reverend McManus is also concerned about the traffic since the
store is located on a sharp curve on the Ruby Hartsville Highway, near the
church. Due to the rural nature of the community, the Chesterfield County
Sheriff’s department would have to respond to any incidents at the location.
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 he does not think that this location benefits the community. 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 Chesterfield
County Sheriff’s department did not file a valid protest to this location,
despite the Protestant’s allegations of law enforcement problems in the area.
I find that this location is suitable for the on‑premises sale of beer
and wine.
11. Although
the concerns of the Protestant are understandable, 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.
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.
AND IT IS SO
ORDERED.
__________________________________
CAROLYN
C. MATTHEWS
Administrative
Law Judge
November 30, 2005
Columbia, South Carolina |
