ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Columbia
Fine Wine, Inc., d/b/a Total Wine & More (“Petitioner”), for an off-premises beer and wine permit
for a location at 275 C-1 Harbison Boulevard, Columbia, South Carolina. Upon receipt of a written
protest to the application, the South Carolina Department of Revenue (“Department”) transmitted
the case to the Administrative Law Judge Division (“ALJD”) for a hearing. After timely notice to
the parties and the Protestant, a contested case hearing was held on July 11, 2003, at the offices of
the ALJD in Columbia, South Carolina. The Department was excused from attending the hearing.
Upon review of the relevant and probative evidence and applicable law, the application for an off-premises beer and wine permit is granted upon passing an inspection performed by the South Carolina
Law Enforcement Division (“SLED”) of the finished facility to satisfy the requirements of the law.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
findings of fact by a preponderance of the evidence:
1.Notice of the time, date, place, and subject matter of the hearing was given to all
parties and to the Protestant in a timely manner. The Protestant appeared pro se. This tribunal
inquired at the beginning of the hearing as to whether the Protestant was prepared to go forward with
the hearing, and the Protestant affirmed that he was ready to proceed.
2.Petitioner seeks an off-premises beer and wine permit for the subject location of 275
C-1 Harbison Boulevard, Columbia, South Carolina.
3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2002) concerning
the age and residency of the Petitioner are properly established. Furthermore, the Petitioner has not
had a permit for the sale of beer or wine revoked within the last two years, and notice of the
application was lawfully posted both at the location and in a newspaper of general circulation.
5.The Petitioner has no criminal record and is of sufficient moral character to receive
a permit for the sale of beer or wine.
4.The proposed beer and wine store is located in a commercial shopping center.
5.A SLED investigation of the Petitioner’s establishment to determine whether it
complied with the applicable laws revealed that construction was underway and that a final SLED
inspection would be needed.
6.The Department was excused from the hearing on the basis of its motion indicating
that it would have issued the license in question but for the unanswered questions of the suitability
of the location raised by the Protestant. The Department’s file on the Petitioner’s application was
admitted into evidence at the hearing.
7.The Protestant testified that he has no problem with the proposed beer and wine store.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law, the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer, and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth requirements for determining
eligibility for an off-premises beer and wine permit. One of the requirements is that the location of
the proposed business be a proper one in the opinion of the Department. S.C. Code Ann. § 61-4-520
(6) (Supp. 2002)
3.Permits issued by the State for the sale of beer, wine, and liquor are not rights or
property, but are rather privileges granted in the exercise of the police power of the State to be used
and enjoyed only so long as the restrictions and conditions governing them are complied with. As
the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that
tribunal is likewise authorized to place restrictions or conditions on the permit. See Feldman v. S.C.
Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
4.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).
5.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 an off-premises beer and wine permit using broad but not unbridled
discretion. Ronald F. 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.
6.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a 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 on the community within which it is to be located.
Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may
be considered. The proximity of a location to a church, school or residences is a proper ground by
itself upon which the location may be found to be unsuitable and a permit denied. Byers v. S. C. ABC
Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there have
been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
7.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a permit 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, 261 S.C. 168, 198 S.E.2d 801 (1973).
8.Considering all relevant factors, I find that the proposed location is a proper location.
S.C. Code Ann. § 61-4-520(6) (Supp. 2002). I further find that the application for an off-premises
beer and wine permit should be granted, but only upon the Petitioner first passing an inspection by
SLED of the finished facility to satisfy the requirements of the law.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for an off-premises beer and
wine permit for the location at 275 C-1 Harbison Boulevard, Columbia, South Carolina, is granted
upon passing an inspection performed by SLED of the finished facility to satisfy the requirements of
the law;
AND IT IS SO ORDERED.
________________________________________
C. Dukes Scott
Administrative Law Judge
July 11, 2003
Columbia, South Carolina |
