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. Lanford Fuel Mart (Petitioner) seeks an off-premises
beer and wine permit for the location at 415 North Main Street, Woodruff, South
Carolina (location). Protests to the application were filed with the South
Carolina Department of Revenue (Department). Because of the protests, the
hearing was required.
The
hearing in this matter was held on June 8, 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 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 Protestants.
2. Petitioner
seeks an off-premises beer and wine permit for the location at 415 North Main
Street, Woodruff, South Carolina, inside the city limits.
3.
Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
4. Terry
G. Lanford is the sole member of Landmark, LLC, which owns Lanford Fuel Mart.
5. Mr.
Lanford 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.
6. Currently,
Mr. Lanford operates a convenience store at the location which sells Citgo gasoline
and other small grocery items. The location’s hours of operation are 6:00 a.m.
to 10:00 p.m. Monday through Saturday and 12:00 p.m. to 6:00 p.m. on Sunday.
7. The
location is on Main Street (US Hwy 221) in Woodruff, in a commercial area.
Main Street is a four lane road and is the main thoroughfare through the town.
There are several other convenience stores and restaurants which are licensed
for the sale of beer and wine that are located near the location along Main
Street.
8. Mr.
Lanford owns the property on which the location is situated and he also owns
approximately one and a half acres of land to the rear of the location.
9. Currently,
there are approximately fifteen (15) parking spaces at the location.
10. Trash
at the location is collected on a daily basis and there is a dumpster on site.
11. No
loitering is allowed outside of the location.
12. The
Community Center is located across the street from the location. However, it
will move to a new location approximately one mile away within the next month.
13. The
Baptist Association is also located across the street from the location. It
serves as the administrative office to sixteen Baptist churches. No church
services are held at the Baptist Association building.
14. Protestants
Dr. James T. Sloan, Jeffrey Wayne Taylor, William Thomason, and Gordon Godfrey appeared
at the hearing and testified in opposition to the permit application. The Protestants object to the issuance of a beer and wine permit at
this location due to its close proximity to the Baptist Association and based
upon moral and religious opposition to alcohol.
15. There
are no churches, schools, playgrounds or residences in close proximity to the
location.
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 suitable for the issuance of an off-premises beer and
wine permit. The location is in a commercial area and there are many other
businesses licensed for the sale of beer and wine in close proximity to the
location. There are no churches, schools, residences, or playgrounds in close
proximity to the location either. Protestants objected to the permit in part
due to the fact that the Baptist Association is across the street from the
location. However, it operates solely as an administrative office and no church
services are held there. Furthermore, Protestants’ primary objection to the
permit was based on moral and religious opposition to alcohol, which is not a
sufficient basis on which to deny a permit. Accordingly, I
find and conclude that the objections raised by the Protestants are not
sufficient for this tribunal to find this location unsuitable for an
off-premises beer and wine permit. There being no evidence that the
issuance of an off-premises beer and wine permit at this location would have an
adverse impact on the community, I conclude the location suitable for the sale
of beer and wine for off-premises consumption.
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 Lanford Fuel Mart, 415 North Main Street, Woodruff, South Carolina is GRANTED.
AND
IT IS SO ORDERED.
____________________________
Marvin F.
Kittrell
Chief
Administrative Law Judge
June 15, 2006
Columbia, South Carolina
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