ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (ALC)
pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2004), S.C. Code Ann.
§ 61-4-520 (Supp. 2004), S.C. Code Ann. § 61-6-1820 (Supp. 2004) and the
Administrative Procedures Act (APA), S.C. Code Ann. §§ 1-23-310 et seq.
(Rev. 2005), for a contested case hearing. Petitioner seeks an on-premise beer
and wine permit and a sale and consumption license for the [Inn at USC] (USC
Hotel). The South Carolina Department of Revenue (Department) would have
granted the permit and license but for a protest filed by a local resident.
Notice of the time, date, place and subject matter of the hearing was given to
Petitioner, the Protestant, and Respondent. A hearing was held on January 26,
2006, at the offices of the ALC in Columbia, South Carolina.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of persuasion and the credibility of the witnesses, I
make the following findings of fact by a preponderance of evidence:
1. Petitioner
seeks an on-premise beer and wine permit and a sale and consumption license for
the USC Hotel, located on the 1600 block of Pendleton Street in Columbia, South Carolina.
2. The
qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2004) and S.C.
Code Ann. § 61-6-1820 (Supp. 2004) concerning the residency and age of the
applicant are properly established. Furthermore, E.L. Pooser, Jr., USC Hotel's
principal, has not had a permit or license revoked within the last two (2)
years and is of sufficient moral character to receive a beer and wine permit
and a sale and consumption license. Public notice of the application was also lawfully
posted both at the location and in a newspaper of general circulation.
3. The
proposed location is not within three hundred (300) feet of any church or
playground. The USC Hotel, however, is located within 300 feet of the University of South Carolina’s Moore School of Business.
4. The
Protestant objects to the location receiving a permit and license because of:
a. Its
proximity to the Moore School of Business;
b. The address
shown upon the tax records and the application are dissimilar;
c. The
Petitioner misled him that only beer and wine would be sold at the location;
and
d. The location
was improperly approved by the Department because it has a “vested interest” in
approving the permit because of the revenue generated by the permit and
license.
Though the
address of the location may be dissimilar to the address on some tax map(s),
the USC Hotel is clearly on the 1600 block of Pendleton Street. In fact, it
occupies most if not all of that city block. Additionally, in a letter to the
Protestant, Mr. Pooser set forth that the USC Hotel is not seeking to sell
beer, wine or alcohol but it is only requesting a “license to have the ability
to serve alcoholic beverages at no cost during special functions.”
I do not find that the site of the proposed location was
misidentified or that the Protestant has been misled that only beer and wine
would be sold at the location. Furthermore, other than concerns raised
regarding the proximity of the USC Hotel to the Moore School of Business, no
direct evidence was introduced to substantiate that granting the permit and/or
license to the USC Hotel would change the integrity of the vicinity or have an
overall adverse impact on the community. There also was no evidence of an
existing criminal problem that could be exacerbated by granting the permit.
Therefore, I find that Petitioner’s proposed location is suitable for an
on-premise beer and wine permit and a sale and consumption license.
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 (Rev. 2005) grants jurisdiction to the Administrative Law
Court to hear contested cases under the APA. Additionally, S.C. Code Ann. §
61-2-260 (Supp. 2004) grants the ALC the responsibilities to determine
contested matters governing alcoholic beverages, beer and wine.
2. In
a contested case hearing under the APA, the ALC acts as the trier of fact. See Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512,
560 S.E.2d 410, 413 (2002); Reliance Ins. Co. v. Smith, 327 S.C. 528,
534, 489 S.E.2d 674, 677 (Ct. App. 1997).
3. S.C.
Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for the issuance
of a beer and wine permit. Among other requirements, Section 61-4-520 dictates
that the location where the applicant proposes to sell beer or wine must be a
proper one.
4. 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 sale and consumption license be granted only to a
bonafide business engaged primarily and substantially in either the business of
preparing and serving meals or furnishing lodging. Furthermore, if the
applicant is a corporation or association, then not only must the principals be
of good moral character but the business must also have a reputation for peace
and good order.
5. 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, and playgrounds as set forth in S.C. Code Ann. §
61-6-120 (Supp. 2004).
6. Although
"proper location" is not statutorily defined, the ALC is vested, as
the trier of fact, with the authority to determine the fitness or suitability
of a particular location. See Fast Stops, Inc. v. Ingram, 276
S.C. 593, 595, 281 S.E.2d 118, 120 (1981). The determination of suitability of
location is not necessarily a function solely of geography. Kearney v. Allen, 287 S.C. 324, 326-327, 338 S.E.2d 335, 337 (1985). 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. Id. at 327, 338 S.E.2d at 337. In determining the
suitability of a location, it is proper for this Court, as the trier of fact,
to consider any evidence that demonstrates the adverse effect the proposed
location will have on the community. See Palmer v. S.C. Alcohol Beverage
Control Comm'n, 282 S.C. 246, 249, 317 S.E.2d 476, 478 (Ct. App. 1984). It
is also relevant to consider the previous history of the location. See 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. See Smith
v. Pratt, supra; Taylor v. Lewis, supra.
“A
liquor license or permit may also be properly refused on the ground that the
location of the establishment would adversely affect the public interest, that
the nature of the neighborhood and of the premises is such that the
establishment would be detrimental to the welfare . . . of the inhabitants, or
that the manner of conducting the establishment would not be conducive to the
general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121
at 501 (1981). Nevertheless, 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).
7. The
Protestant contends that the USC Hotel is unsuitable for an on-premise beer and
wine permit or a sale and consumption license because of its proximity to the University of South Carolina. S.C. Code Ann. § 61-4-520(7) (Supp. 2004) provides that the
ALC “may consider, among other factors, as indications of unsuitable location,
the proximity [of the proposed location] to . . . schools” in determining
whether to grant a retail beer and wine permit. I do not find, however, that
the USC Hotel is unsuitable for a beer and wine permit because of its proximity
to the University of South Carolina. Nevertheless, the criterion in instances
in which an applicant seeks a license to sell alcoholic products is more
restrictive. In those instances, a license shall not be granted
“if the place of business is within three hundred feet of any . . . school.” S.C.
Code Ann. § 61-6-120 (A) (Supp. 2004). “School” is defined in Section 61-6-120
(A) as “an establishment, other than a private dwelling where the usual
processes of education are usually conducted.”
The
Protestant asserts that the University of South Carolina is a school under Section
61-6-120 (A). The Department asserts that the word “school” does not include
colleges or universities. It further argues that that interpretation has been
the longstanding interpretation of the Department and the former ABC Commission
following an Attorney General Opinion in October 18, 1976, propounding that
stance. See 1975-76 Op. S.C. Att’y Gen. No. 4494 at 351. Accordingly, the
Department asserts that its interpretation that a school does not include a
university is entitled to deference.
“The
construction of a statute by an agency charged with its administration will be
accorded most respectful consideration and will not be overruled absent
compelling reasons.” Jasper County Tax Assessor v. Westvaco
Corp., 305 S.C. 346, 348, 409 S.E.2d 333, 334 (1991). Nevertheless, the
deference given to those charged with the duty of executing a statute is
restricted to cases in which the meaning of the statute is uncertain. Glens
Falls Ins. Co. v. City of Columbia, 242 S.C. 237, 242, 130 S.E. 2d 573, 576
(1963). In other words, if there is no uncertainty, there is no reason for
resorting to the rules of statutory construction and interpretation.
Here, the primary issue is whether the definition of “school”
is ambiguous concerning its application to universities or colleges. Section
61-6-120 (A) provides that a school is an establishment where the “usual
process” of education occurs. Usual is defined as “accordant with usage,
custom, or habit” and also as “found in ordinary practice or in the ordinary course
of events.” Merriam-Webster Online (2005), <http://www.m-w.com>.
Though a college education clearly appears to be an educational process, it is
arguably not an ordinary custom but is rather an elective process. Following
this reasoning a secretarial school or driving school would not be considered a
school under the statute.[2]
Moreover, the South Carolina Code of Laws contains numerous instances in which
the term school is distinguished from a college or university. E.g.,
S.C. Code Ann § 3-9-10 (a) (3) (1986); S.C. Code Ann § 8-1-115 (A) (Supp. 2004);
S.C. Code Ann § 16-3-510 (Supp. 2004). Therefore, I find there is some
ambiguity in the meaning of “the usual processes of education.” Furthermore,
there is some logic in the Department’s construction. Accordingly, I do not
find compelling reasons to overturn the Department’s construction.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit and restaurant
sale and consumption license of USC Hotel Associates, LLC be granted, upon
payment of the proper fees and costs
AND IT IS SO
ORDERED.
__________________________________
Ralph
King Anderson III
Administrative
Law Judge
February 9, 2006
Columbia, South Carolina
Other than his conjecture as to a “vested
interest,” the Protestant did not present any evidence of such an interest by
the Department. Furthermore, to prove the denial of due process, a party must
show that it has been substantially prejudiced by the administrative process. Palmetto
Alliance, Inc. v. S.C. Public Service Comm’n, 282 S.C. 430, 435, 319 S.E.2d
695, 698 (1984). In Ross v. Med. Univ. of South Carolina, 328 S.C. 51,
68, 492 S.E.2d 62, 71 (1997), the South Carolina Supreme Court held that:
Article I,
§ 22 [of the South Carolina Constitution] requires an administrative agency [to]
provide notice and an opportunity to be heard, but does not require notice and
an opportunity to be heard at each level of the administrative process. It
mandates notice and opportunity to be heard at some point before the agency
makes its final decision.
The
ALC, as part of the executive branch of South Carolina government, provides
notice and opportunity to be heard before the final administrative decision. See S.C. Code Ann. §§ 1-23-500 et seq. In this instance, the
Protestant was clearly provided notice of the Department’s decision to approve
the permit and license, and exercised his right to be heard by seeking a
contested case hearing before this Court. Therefore, this issue will not be
addressed further.
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