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), § 61-4-520 (Supp. 2005), § 61-4-525
(Supp. 2005) and S. C. Code Ann. §§ 1-23-310 et seq. (2005), for a
contested case hearing. Alfred McLamb, Sr., d/b/a Lottieson (Petitioner) seeks
an off-premises beer and wine permit for the location at 113 Frank David Road,
Bennettsville, South Carolina (location). Sarah D. Woods, Julia Cain, and
Claudette Hooker each filed protests to the application with the South Carolina
Department of Revenue (Department). Because of the protests, the hearing was
required.
The
hearing in this matter was held on April 13, 2006, at the offices of the
Administrative Law Court in Columbia, South Carolina. Both parties and the
Protestants appeared at the hearing. Evidence was then introduced and
testimony was given. After carefully weighing all the evidence, I find that the
application for an off-premises beer and wine permit for this location should
be denied.
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 Protestants.
2. Petitioner
seeks an off-premises beer and wine permit for the location at 113 Frank David
Road, Bennettsville, South Carolina, which is outside of the city limits.
3.
Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
4. Alfred
McLamb, Sr., is over the age of twenty-one. He is a legal resident of the
State of South Carolina and has maintained his principal place of abode in the
State of South Carolina for at least thirty (30) days prior to the date of
application. He is of good moral character and has never had a beer or wine permit
suspended or revoked.
5. Currently,
Mr. McLamb operates a convenience store at the location which sells items such
as potato chips, candy, sodas, ice cream, and canned goods. The location’s hours
of operation are 2:00 p.m. to 8:00 p.m. Monday through Friday.
6. Mr.
McLamb is employed as a long haul truck driver and is usually out of town
during the weekdays. Mr. McLamb’s wife, who is a full-time student, operates
the store during the week. The McLambs live approximately 10 miles from the
location.
7. The
location is in a primarily residential area in a rural area of Marlboro County,
with numerous houses in the general vicinity. Mr. McLamb’s mother, Lottie
McLamb, owns the property on which the location is situated and lives
approximately 300 yards away from the location. There is also a residence
directly across the street from the location and several others located in
close proximity to the location on Frank David Road and on David Circle.
8. There
is one store approximately one and a half miles away from the location that is
licensed for the sale of beer and wine.
9. Protestants
Sarah Woods, Julia Cain, and Claudette Hooker appeared at the hearing and
testified in opposition to the permit application, each expressing concerns for
safety, litter, loitering, and the proximity of the location to the numerous
surrounding residences in which many children reside and play.
10. Both
Ms. Woods and Ms. Cain live on David Circle, which is located off of Highway 38
in Bennettsville. David Circle runs behind the location and is separated from
it by a field. David Circle can be accessed by crossing directly over the
field to the location. Ms. Hooker lives near the corner of Highway 38 and David
Circle.
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. § 61-4-520 (Supp. 2005) sets forth the requirements for the issuance
of a beer and wine permit.
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 a hearing 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). 7. 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). The “proximity of a location to a church,
school or residence is a proper ground, by itself, on which the [trier of fact]
may find the location to be unsuitable.” Byers v. S.C. Alcoholic Beverage
Control Comm’n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991). Furthermore,
in considering the suitability of a location, it is relevant to consider the
previous history of the location and 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).
8. 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 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).
9. 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, is
likewise authorized to revoke or suspend the permit for cause. See Feldman
v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
10. I
find that the location is not suitable for the issuance of an off-premises beer
and wine permit. The location is in a primarily residential area, with many
houses located in close proximity to the location. Also, there are many
children who live and play in the area. Furthermore, while I believe that Mr.
McLamb has good intentions, I am also concerned that he is not present during
the hours of operation of the location. As a long haul truck driver, Mr.
McLamb is out of town during the week during the store’s hours of operation.
Therefore,
given the proximity of nearby residences, the concern for safety of residents
and young children in the neighborhood, and the fact that Mr. McLamb would not
be able to operate the location during the week, I find that the issuance of an
off-premises beer and wine permit at this location would have an adverse impact
on the community and therefore find that the location is not suitable. Accordingly,
I find and conclude that the request by Petitioner for an off-premises beer and
wine permit is denied.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the request for an off-premises beer and wine permit
by Alfred McLamb, Sr., d/b/a Lottieson, 113 Frank David Road, Bennettsville, South
Carolina is DENIED.
AND
IT IS SO ORDERED.
____________________________
Marvin F.
Kittrell
Chief
Administrative Law Judge
April 20, 2006
Columbia, South Carolina |
