ORDERS:
FINAL ORDER AND DECISION
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. (2005). Catherine G.
Horne, d/b/a Horne’s General Store (Horne) seeks an on-premises beer and wine
permit for the location at 377 Hwy. 39, Chappells, South Carolina.
Respondent South Carolina Department of Revenue
(Department) denied Petitioner’s application for the permit because of timely
filed protests. An expedited hearing in this matter was held at 2:00 p.m.
on Tuesday, August 15, 2006, at the offices of the Administrative Law Court in
Columbia, South Carolina. All parties appeared at the hearing, along with the
protestants. 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.
Notice of the time, date, place and subject matter of the hearing was timely
given to all parties and the protestants.
2.
Petitioner Horne seeks an on-premises beer and wine permit for the location at
377 Hwy. 39, Chappells, South Carolina (location), in Newberry County.
3. Catherine G. Horne is over the age of
twenty-one. 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 days
prior to making this application. Ms. Horne is of good moral character and has
not had a beer and wine permit or liquor license revoked in the last two years.
4. Notice of the application was lawfully posted in
a newspaper of general circulation.
5. The location is situated at the intersection of
South Carolina Highway 34 and South Carolina Highway 39. No schools are in the
immediate vicinity of the location. Several police officers and sheriff’s
deputies live nearby.
6. The location has been continuously licensed for
the sale of beer and wine for on-premises consumption since approximately
1987. Ms. Horner operated the location under a temporary beer and wine permit
until July 31, 2006, when the permit expired. No documented problems have
occurred at the location either under Ms. Horne’s ownership or during prior
ownership. The location is open Monday through Saturday from 6:00 a.m. to 9:00
p.m. and on Sunday from 7:00 a.m. to 7:00 p.m.
7. Ms. Horne indicates that there will be no live
music or contests at the location. The location is well lit and Ms. Horne
ensures that all garbage is collected.
8. Toby Gene Horne, nephew of the Petitioner,
previously managed the location for approximately one and a half years. Toby
Horne has been a Saluda County Deputy Sheriff for approximately ten years. He
continues to work at the store two or more days per week while not on duty with
the Sheriff’s Department.
9. Approximately
twenty three people residing in Newberry County or within five miles of the
location submitted valid protests to the Department regarding this
application. Roy Menddelsohn and Glenn Kennedy testified on behalf of the
protestants. Also, Deputy Matt Bowers of the Newberry County Sheriff’s
Department was allowed to testify, despite the fact that the Newberry County
Sheriff’s Department had not filed a timely protest in this matter.
10. Roy
Menddelsohn expressed issues on behalf of the protestants. Mr. Menddelsohn
made it clear that the nearby residents are in support of Ms. Horne’s store,
however they believe that providing alcohol for on-premises consumption is not
necessary to ensure the store’s success. Mr. Menddelsohn is concerned about
patrons leaving the store after consuming beer and/or wine. He believes that
the loss in income from preventing on-premises consumption at the location will
be marginal.
11. Glenn
Kennedy is also opposed to Petitioner being issued an on-premises beer and wine
permit for the location. Mr. Kennedy served approximately thirty years as a
police officer. Based on events he has witnessed while an officer, Mr. Kennedy
believes that an on-premises beer and wine permit at the location, if issued,
will lead to problems in the future. Mr. Kennedy has witnessed that many
people hang out at the store and that there are many cars in the parking lot.
Mr. Kennedy is concerned about allowing on-premises consumption at the store
because it is located at a busy intersection.
12. Deputy
Matt Bowers is concerned with the location’s distance from the Newberry County
Sheriff’s Department and with the location’s distance from nearby towns.
Deputy Bowers is concerned that because the location is in the corner of
Newberry County in a relatively isolated area, law enforcement may have trouble
quickly reaching the location in the event a problem arises. Deputy Bowers is
also concerned about on-premises consumption at the busy intersection.
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) (2005), and S.C. Code Ann. §§ 1-23-310 et seq. (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. Alcoholic Beverage
Control 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.
Alcoholic Beverage Control 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. Alcoholic Beverage Control Comm'n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
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.
I conclude that the Petitioner has met its burden of proof in showing
that it meets all of the statutory requirements for holding an on-premises beer
and wine permit at the location. Although cognizant of the Protestants’ concerns,
I conclude that the proposed location is a proper one for granting the permit. I find that the proposed location is
suitable for Petitioner to operate with an on-premises beer and wine permit and
that Petitioner’s operations will not be detrimental to the welfare of the
surrounding community. There have not been any law enforcement problems at the
location while having an on-premises permit in the past and I feel that this
trend will continue while the location is owned by Ms. Horne.
11. 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 on-premises 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
August 16, 2006
Columbia, South Carolina |