SC Administrative Law Court Decisions

STATEMENT OF THE CASE

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. 2005) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2005). C & E Social Club (C & E) seeks an on-premise beer and wine permit for its location at 201 Cross Street, Darlington, South Carolina.

Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit because of a timely filed protest by Reverend Herbert Wells.

A hearing in this matter was held at 10:00 a.m. on Thursday, June 15, 2006, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Protestant Herbert Wells.

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.

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, C & E Social Club (C & E), seeks an on-premise beer and wine permit for its location at 201 Cross Street, Darlington, South Carolina (location).

4. Charles M. Wingate 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 this state for at least thirty (30) days prior to making this application. Mr. Wingate 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. The location is situated in a highly commercial area of the Highway 52 Bypass in Darlington. Raceway Ford is located directly across the Highway 52 Bypass from the location. An International Dealership is adjacent to Raceway Ford. Other businesses exist nearby. No schools or residences are in the immediate vicinity of the location.

7. The location previously held an on-premises beer and wine permit under prior ownership from 1998 to 2001. No documented problems occurred at the location while the prior owners held the permit. Mr. Wingate plans to provide employment to local residents and plans to allow local community groups to use the facility. Mr. Wingate plans to open for business Tuesday through Saturday of each week.

8. Reverend Herbert Wells is concerned about the proximity of the location to Love Life Ministries. Reverend Wells claims that the location is approximately thirty three feet from the driveway of the church and approximately one hundred forty one feet from the church building. Reverend Wells is also concerned about the proximity of the location to the property adjacent to Love Life Ministries where the church has plans to build a sanctuary in the near future.

9. The measurements made by the South Carolina Law Enforcement Division contained in the record indicate that the church is three hundred thirty one feet from the location.

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. 2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2005).

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. 2005) 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. 2005).

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. However, the proximity of the location to residences, schools, playgrounds, and churches may be considered when determining the suitability of a location. See S.C. Code Ann. § 61-4-520 (Supp. 2005). Yet, unlike the requirements for licenses involving alcoholic liquors, there is no specific distance requirement for locations seeking beer and wine permits. See S.C. Code Ann. § 61-4-520 (Supp. 2005) (which does not contain a distance requirement) and S.C. Code Ann. § 61-6-120 (Supp. 2005) (requiring the Department to deny any license provided for in Article 6 or Article 7 of chapter 61 if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality).

In this case, the measurement calculated pursuant to S.C. Code Ann. § 61-6-120 (Supp. 2005) is three hundred thirty one feet. I find that a distance that satisfies the requirement for a license involving alcoholic liquors also satisfies the less stringent criteria of a beer and wine permit. Therefore, I find that the proximity of the location to Love Life Ministries does not render the location unsuitable for a beer and wine permit.

The Protestant in this case is also concerned about the proximity of the location to the property adjacent to Love Life Ministries where the church has plans to build a sanctuary in the near future. However, the fact remains that the proposed new building has not been constructed, and therefore, cannot serve as a basis upon which to deny Petitioner its license. Church or school buildings not in existence at the time of permitting cannot be considered in determining whether a church or school is within the prohibited distance from a proposed location. See Starks v. Presque Isle Circuit Judge, 139 N.W. 29, 29 (Mich. 1912) (holding that the establishment of religious services near a saloon two days after it received its license did not affect the validity of the license as the Michigan liquor licensing statute had “reference to churches and schoolhouses that are within the prohibited distance from the proposed saloon when the license is granted, and not to those that are established and located within the prohibited distance after the license is granted”); see also M.C. Dransfield, Annotation, “Church” or the Like, within Statute Prohibiting Liquor Sales within Specified Distance Thereof, 59 A.L.R.2d 1439, 1442-43 (1958) (“Furthermore, it has been held that a statutory provision of the kind in question does not apply to church property on which the construction of an edifice has begun but not completed . . . or to a generally undeveloped vacant lot, leveled, plowed, and seeded by the church, which owned it, with the idea of using it as a possible playground.”) (footnotes omitted). Thus, as Love Life Ministries’ existing buildings and the grounds in use by the Ministry do not currently render the location unsuitable, I find that the location is suitable. I further find that the plans to build a sanctuary in close proximity to the location in the future do not currently render the location unsuitable.

11. I conclude that the Petitioner has met its burden of proof in showing that it 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.

12.       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.

13.       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 Department resume processing Petitioner's application and issue an off-premise beer and wine permit to Petitioner upon payment of the proper fees and costs.

AND IT IS SO ORDERED.

__________________________________

JOHN D. MCLEOD

Administrative Law Judge

June 16, 2006

Columbia, South Carolina