ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 61-2-90 (Supp. 2005), §§ 61-6-100 et seq. (Supp. 2005), and
§§ 1-23-310 et seq. (2005) for a contested case hearing. McCaslan’s ABC
(Petitioner) seeks a retail liquor license. Pastor Brian Hatchett (Protestant) of Northside Baptist Church 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 April 13, 2006, at the offices of
the Administrative Law Court in Columbia, South Carolina. Both parties and the
Protestant appeared at the hearing. Evidence was introduced and testimony was
given. After carefully weighing all the evidence, I find that the retail liquor
license 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. Notice
of the time, date, place and subject matter of the hearing was timely given to all
parties and the Protestant.
2. Peggy
McCaslan, the owner of McCaslan’s ABC, seeks a retail liquor license for the
premises located at 142 E. A. Tugaloo Street, Calhoun Falls, South Carolina (location).
3. Notice
of the application was lawfully posted both at the location and in a newspaper
of general circulation.
4. Ms.
McCaslan is over the age of twenty-one. She is a legal resident of the State of
South Carolina and has maintained her principal place of abode in the State of
South Carolina for at least thirty (30) days prior to the date of application.
She possesses good moral character and has never had a license for the sale of
alcoholic liquors revoked.
5. The
proposed location is inside the city limits in Abbeville County.
6. Currently,
Ms. McCaslan and her husband, Tony McCaslan, operate a pool room next to the
proposed location. However, the proposed location and the pool room will have
completely separate entrances and exits, and are not joined by a door on the
inside.
7. The
hours of operation for the proposed location are 9:00 a.m. to 7:00 p.m. Monday
through Saturday. Both Mr. McCaslan and Ms. Tina Wyles will assist Ms.
McCaslan in operating the store.
8. Ms.
McCaslan and her husband previously operated a liquor store and game room in
Calhoun Falls for over nineteen (19) years without any violations. However,
they were forced to close that store and game room approximately two (2) years
ago when DOT exercised eminent domain over their property.
9. There
are no churches, schools, or playgrounds within five hundred feet of the
location.
10. Protestant
Brian Hatchett, pastor of Northside Baptist Church, protested the application
and appeared at the hearing. Pastor Hatchett is concerned that teens will have
greater access to alcohol if the license is granted because the pool room that
Ms. McCaslan currently operates next to the proposed location has become a
“local teen hang-out.”
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 (2005) 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. 2005) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
3. S.C.
Code Ann. §§ 61-6-110 et seq. (Supp. 2005) sets forth the general
requirements for determining eligibility for a retail liquor license.
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 licensee 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 or license, is likewise authorized to revoke or
suspend the permit or license for cause. See Feldman v. S.C. Tax
Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9. Pastor Hatchett’s primary concern is that teens
will have greater access to alcohol if the permit is granted. Pastor Hatchett’s
concern is primarily based upon the presence of a game room next door to the
proposed location, where he asserts many teens hang out to play pool. However,
Ms. McCaslan and her husband previously operated a similar establishment for
over nineteen (19) years without incident. Furthermore, they have operated
the game room at the current location without any problems.
There is no evidence that the operation of this retail
liquor store will have an adverse impact on the surrounding community. No
individuals who live in close proximity to the location appeared at the hearing
in opposition to the issuance of this retail liquor store license.
Furthermore, the proposed location is not within five hundred (500) feet or
unreasonably close to any church, school or playground.
Therefore, I find that Petitioner meets all the
statutory requirements, including suitability, for a retail liquor store and
authorizes the Department to issue the retail liquor license for the location
at 142 E. A. Tugaloo Street, Calhoun Falls, South Carolina upon the payment of
all required fees.
ORDER
Based upon the above Findings of Fact and Conclusions of
Law,
IT IS HEREBY ORDERED that the application for a
retail liquor license by McCaslan’s ABC, 142 E. A. Tugaloo Street, Calhoun
Falls, South Carolina is GRANTED; and
IT IS FURTHER ORDERED that the Department resume
processing the Petitioner’s application and issue a retail liquor license to
the Petitioner upon payment of the proper fees and costs.
AND IT IS SO ORDERED.
_________________________________
April 19,
2006 Marvin F.
Kittrell
Columbia,
South Carolina Chief Administrative
Law Judge
At the hearing, the Department stipulated that
Applicant meets all statutory requirements for a retail liquor license.
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