SC Administrative Law Court Decisions

This matter comes before the Administrative Law Court (ALC or Court) for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004). Alisha Marie Shipman, d/b/a Big Will’s Arcade (Shipman), seeks an on-premise beer and wine permit for Big Will’s Arcade, located at 4375 Broad Street, Loris, South Carolina.

Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit because of a timely filed protest by Herbert Blake, Chief of Police for the City of Loris.

A hearing in this matter was held at 10:00 a.m. on March 21, 2006, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Protestant Herbert Blake.

After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s on-premises beer and wine permit shall be granted. The on-premises beer and wine permit will be issued with the restrictions listed below.

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 parties and the Protestants.

3. The Petitioner, Alisha Marie Shipman, d/b/a Big Will’s Arcade (Shipman), seeks an on-premise beer and wine permit for Big Will’s Arcade, located at 4375 Broad Street, Loris, South Carolina (location).

4. Alisha Marie Shipman is over the age of twenty-one. She is a legal resident of the State of South Carolina and has maintained his principal place of abode in this state for at least thirty (30) days prior to making this application. Ms. Shipman is of good moral character and has not had an alcoholic permit or license revoked in the last two (2) years

5. Notice of the application was lawfully posted in a newspaper of general circulation.

6. Ms. Shipman stipulates that, as conditions of a permit if so granted, she will not allow persons under 21 years of age into the location after 8:00 p.m. in the evening, she will close the location no later than 1:00 a.m. on weeknights, and she will close the location on Sundays. Ms. Shipman also stipulates that she will employ a minimum of one uniformed security guard on Friday and Saturday evenings from 9:00 p.m. until closing to police the exterior of the business to insure no loitering, littering, or other illegal activity is conducted by patrons. Finally, Ms. Shipman stipulates that Wayland Williamson, Jr. will not have any involvement in the business.

7. The location is not within three hundred feet of a church, school, or playground.

8. Police Chief Herbert Blake is concerned about the proximity of the location to the North Carolina state line. He is also concerned about minors being present in the arcade, and the possibility that the minors may obtain beer and wine. Several incidents reports arose from activity occurring outside the arcade involving crowds, loitering, and arguments in the Fall of 2005. Chief Blake is concerned that this sort of activity will increase with the availability of beer and wine at the location. Chief Blake also fears that the lack of security outside the location and the late hours of operation will result in an increase in incident reports. Finally, Chief Blake objects to the employment of Wayland Williamson, Jr. at the location because of his lengthy criminal record.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1.         Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004).

2.         “[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3.         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). 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, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).

4.         S.C. Code Ann. § 61-4-520 (Supp. 2004) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. S.C. Code Ann § 61-4-520(6)-(7) (Supp. 2004).

5.         Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

6.         The determination of suitability of location is not necessarily a function solely of geography. Rather, 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); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7.         In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

8. 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 or suitability of the proposed business location of an applicant for permits and licenses to sell alcoholic beverages 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). 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.

9. 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).

10. I conclude that the Petitioner has met its burden of proof in showing that she meets all of the statutory requirements for holding a beer and wine permit at the location. Although cognizant of the Protestant’s concerns, I conclude that the proposed location is a proper one for granting the permit.

11.       In the case at hand, I find that the proposed location is suitable for Petitioner to operate with an on-premises beer and wine permit. I find that Petitioner’s operations will not be detrimental to the welfare of the surrounding community.

12.       In reaching a decision in this matter, this tribunal is constrained by the record before it and by the applicable statutory and case law. Here, Petitioner meets all of the statutory and regulatory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit, and there has not been a sufficient evidentiary showing that the location is unsuitable for Petitioner’s proposed beer and wine sales or that the issuance of the permit would have an adverse impact on the surrounding community.

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 by Alisha Marie Shipman, d/b/a Big Will’s Arcade (Shipman), located at 4375 Broad Street, Loris, South Carolina is GRANTED upon Alisha Marie Shipman signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

RESTRICTIONS

1. Petitioner and her employees shall not allow excessive noise to emanate from the location (any noise that is noticeably audible within any local residence with closed doors and windows shall be considered excessive). For the purposes of this restriction, any conviction for the violation of any applicable county noise ordinance shall be considered prima facie evidence of a violation of this provision.

2. No music, including live music, or any activities sponsored, authorized or acquiesced to by Petitioner, is permitted on the outside of the location.

3. Petitioner shall not be open for business at the location past 1:00 a.m. on any night of the week.

4. Petitioner shall not be open for business on Sundays.

5. Petitioner shall keep the location and the area surrounding the location reasonably free of any litter resulting from patrons of Petitioner’s business.

6. Petitioner shall employ a minimum of one SLED certified uniformed security guard on Friday and Saturday evenings from 9:00 p.m. until closing to police the exterior of the business.

7. Petitioner shall not employ Wayland Williamson, Jr. at the location.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the on-premises beer and wine permit and, after notice to the Department and a hearing, may result in a fine, suspension, or revocation of the on-premises beer and wine permit.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

March 30, 2006

Columbia, South Carolina