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. §§ 1-23-310 et seq. (2005), 61-2-260 (Supp. 2005), and 61-4-525
(Supp. 2005) for a contested case hearing. King’s Convenience Store (Petitioner),
seeks an on-premises beer and wine permit for its location at 880 Aletha
Street, Orangeburg, South Carolina (location). Detective Michael A. Adams (Protestant)
filed a protest to the application with the South Carolina Department of
Revenue (Department) and appeared at the hearing. Because of the protest, the
hearing was required.
A hearing in this matter was held before me on June 20,
2006 at the ALC in Columbia, South Carolina. Both parties and the Protestant
appeared at the hearing. Evidence was introduced and testimony was taken.
After carefully weighing all the evidence, I find and conclude that Petitioner’s
request for an on-premises beer and wine permit is denied.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and further 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 the
parties and the Protestant.
2. Denise King (Applicant)
seeks an on-premises beer and wine permit for King’s Convenience Store, located
at 880 Aletha Street, Orangeburg, South Carolina, which is inside the city
limits in Orangeburg County.
3. Ms.
King is over the age of twenty-one (21). She is a legal resident of the State
of South Carolina and has maintained her principal place of abode in this State
for at least thirty (30) days prior to making this application. Ms. King is of
good moral character and has never held a permit or license for the sale of
beer, wine, or liquor.
4. Notice
of the application was lawfully posted both at the location and in a newspaper
of general circulation.
5. The location is
adjacent to an auto repair garage at the corner of Aletha and Whaley Streets. Another
business, Orangeburg Milling, is located directly across the street from the
location.
6. The inside of the
location is separated into two large rooms by a brick wall. The front room of the building operates as a convenience store, where items such
as chips, cookies, candies, and drinks are sold. A counter, which faces the
convenience store area, is located at the front of the building next to the
entrance. The back room of the building operates as a pool hall. There are two
pool tables in this area, as well as a jukebox. Applicant seeks a permit to
sell beer and wine for on-premises consumption in the pool room. There will be
no live music at the location.
7. Applicant and her
husband have made several repairs and renovations on the inside of the
building, including repairing the ceilings and wiring.
8. The location opened
for business in November 2005, and has operated without incident since that
time. Its hours of operation vary. Normally, the location is open from 12:00
p.m. (noon) until 9:00 or 10:00 p.m. However, if Applicant receives a permit
for the sale of beer and wine for on-premises consumption, she intends to stay
open as late as 1:00 a.m.
9. Ms. King is the
sole employee at the location. However, her niece, who is over the age of
twenty-one (21), may also work there in the future. Ms. King and her husband
live approximately three (3) blocks from the location.
10. Children purchase
items inside the convenience store and, on occasion, children from the area congregate
outside the location. Ms. King’s children are also present at times at the
location. Because children are present during the day, Applicant only intends
to serve beer and wine between the hours of 5:00 p.m. and 1:00 a.m.
11. Parking at the
location is very limited. There is little room for cars to park in front of the
building without blocking the street.
12. The outside of the
location is lighted at night.
13. Applicant intends
to hire a security guard if a permit is granted.
14. The location is in
a primarily residential area. There is also a church located around the corner
from the location, approximately one half block away. However, the church did
not protest the application.
15. Protestant Michael
A. Adams, Chief of Detectives for the Orangeburg Department of Public Safety, filed
a protest to the application. Protestant’s concerns include the fact that the
location is in a primarily residential area that is economically depressed, the
proximity of the location to a church, and the limited parking at the location.
Protestant also is concerned that the design of the inside of the location will
not facilitate on-premises beer and wine consumption. Protestant’s major
concern, however, is the level of criminal activity in the area and the effect
that it has on law enforcement.
16. I find that the proposed
location is not suitable for the issuance of an on-premises beer and wine
permit.
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 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, 417 S.E.2d
586 (1992); see also Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854
(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, 471 S.E.2d 154 (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, supra. 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. Id.
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 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).
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, 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).
9. I
find and conclude that the location is not suitable for an on-premises beer and
wine permit and that it would have an adverse impact on the surrounding
community. The location is in a primarily residential area and there is very
limited parking at the location. Furthermore, children frequent the location
and sometimes congregate outside of the building. Also, I am concerned that the
design of the store will make it difficult for Ms. King and other employees to
closely monitor both the convenience store area and pool hall area, as well as
the outside, all at the same time. Accordingly, I find that the location is
not suitable for an on-premises beer and wine permit at this location and that
the application must therefore be denied.
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 Denise King on behalf of King’s Convenience Store located at 880
Aletha Street, Orangeburg, South Carolina is DENIED.
AND
IT IS SO ORDERED.
__________________________________
Marvin F.
Kittrell
July 7, 2006 Chief
Administrative Law Judge
Columbia, South Carolina
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