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. NVD, Inc., d/b/a Kwik Mart (Petitioner),
seeks an on-premises beer and wine permit for its location at 2300 Airport
Boulevard, West Columbia, South Carolina (location). Protests to the
application were filed with the South Carolina Department of Revenue
(Department). Because of the protests, a hearing was required.
A hearing in this matter was held before me on July 6,
2006 at the ALC in Columbia, South Carolina. Both parties and the Protestants
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 granted.
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
parties and Protestants.
2. Petitioner seeks
an on-premises beer and wine permit for its location at 2300 Airport Blvd, West
Columbia, South Carolina.
3. Amarjeet
Cheema, and his brother, Sahib Cheema, are the shareholders of NVD, Inc., a
corporation in good standing with the South Carolina Secretary of State. NVD,
Inc. has a reputation for peace and good order in the community.
4. Petitioner
meets all statutory requirements for the issuance of a beer and wine permit.
Amarjeet and Sahib Cheema are over the age of twenty-one (21). They are legal
residents of the State of South Carolina and have maintained their principal
place of abode in this State for at least thirty (30) days prior to making this
application. They are of good moral character and have never had a permit or
license revoked. Notice of the application was also lawfully posted both at the
location and in a newspaper of general circulation.
5. The location is in
a commercial area off of Airport Blvd, a four lane road which serves as the
main road to the airport. There is a sports bar which serves alcohol in the
shopping plaza next to the location on Airport Blvd.
6. The location
operates as a convenience store and gas station. Its hours of operation are
from 6:00 a.m. to 10:00 p.m. Monday through Saturday. The location is closed on
Sunday.
7. NVD, Inc.
purchased the location from Robert E. Cripps in February 2006. Mr. Cripps had
owned the location since 1979, and the location has been continuously licensed
for the sale of beer and wine for on-premises consumption since September 1979.
Mr. Cripps had no law enforcement problems at the location during his ownership,
nor did he receive any complaints regarding noise or traffic.
8. Petitioner has
operated the location since February 2006 without incident. Petitioner held a
temporary beer and wine permit which expired on June 22, 2006, during the
pendency of this proceeding.
9. Amarjeet Cheema
has three other locations that are licensed for the sale of beer and wine. He
has not had any violations at any of those locations.
10. The location has a
cash register which assists with age verification to ensure that no sales are
made to minors.
11. There is adequate
parking at the location.
12. Protestant Frank
Jovanelly, Principal of Airport High School, filed a protest to the application
on the school’s behalf and appeared at the hearing. Protestant Jovanelly’s primary concern was the proximity of the location to
Airport High School.
13. 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 criteria for the issuance of a
beer and wine permit. Included in the criteria is the requirement that the
proposed location be a suitable one. See id. However, Section
61-4-520 (6) provides that the proximity to residences, schools, playgrounds or
churches cannot be considered as indications of unsuitable location for
locations licensed before April 21, 1986.
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 suitable for the issuance of an
on-premises beer and wine permit. Petitioner meets all of the statutory
criteria for the issuance of an on-premises beer and wine permit. Furthermore,
there is no evidence of any problems occurring at the location since its
opening and initial licensure in 1979. Petitioner has also operated the
location without incident since February 2006. The sole objection by the
Protestant to the application in this case is the proximity of the location to
Airport High School. However, pursuant to Section 61-4-520(6) proximity to
residences, schools, playgrounds, and churches cannot be considered indications
of unsuitable location if the location was licensed before April 21, 1986.
Here, the location has been licensed continuously since September 1979.
Therefore, its proximity to Airport High School does not render the location
unsuitable. There being no evidentiary showing that the location is unsuitable
or that the issuance of the permit would have an adverse impact on the
community, I conclude that Petitioner’s application for an on-premises beer and
wine permit must be granted.
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 NVD, Inc., d/b/a Kwik Mart located at 2300 Airport Blvd, West
Columbia, South Carolina is GRANTED.
AND
IT IS SO ORDERED.
__________________________________
Marvin F.
Kittrell
July 12, 2006 Chief
Administrative Law Judge
Columbia, South Carolina
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