SC Administrative Law Court Decisions

This matter comes before the South Carolina Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600 (Supp. 2000) following the Petitioner's request for a contested case hearing. The Respondent denied the Petitioner's application for an off-premises beer and wine permit because of public protests by concerned citizens concerning the suitability of the location. ⁽¹⁾

The Department filed a Motion to be Excused, stating that the proposed location met all the statutory requirements for an off-premises beer and wine permit and it would have granted the license but for the public protests of the concerned citizens. The Court did not grant this Motion.

A hearing was held in this matter on May 24, 2001 at the South Carolina Administrative Law Judge Division, located at 1205 Pendleton Street, Suite 224, Columbia, South Carolina. Notice of the time, date, place, location, and hearing was timely sent to all parties, as well as the Protestants.

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

• The Petitioner seeks an off-premises beer and wine permit for an establishment known as Charles Grocery, located at 1 Jasper Street, Charleston, South Carolina.
• Nuha Dabit (Dabit), was born on November 10, 1958, and was 42 years of age at the time of the hearing.
• Notice of the application has appeared at least once a week for three (3) consecutive weeks in the Charleston Post & Courier, a newspaper of general circulation in the area where the Petitioner proposes to engage in business. The notice appeared on January 14, 21, and 28, 2000.
• Notice of the application was given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.
• Dabit has been a legal resident of the State of South Carolina for over thirty (30) days prior to the application and has maintained her principal place of abode in the State of South Carolina for over thirty (30) days prior to the application.
• Dabit has never had a beer or wine permit or any other alcoholic beverage license/permit issued revoked. This location has been previously permitted for the sale of alcoholic beverages.
• The location was previously permitted to the Applicant's husband, who returned his permit to the Department after several violations. The parties to this action stipulated that the presence of the applicant's husband at the location would serve as a violation against the permit. The stipulation signed by the parties at the beginning of the hearing is as follows: "The applicant, Nuba [sic] Dabit, in consideration of the S.C. Department of Revenue not opposing her application for a beer and wine permit, agrees that her husband, Khalil Dabit, will not be allowed on the licensed premises. The applicant agrees that it will be a violation against her beer and wine permit for her husband to be on the licensed premises for any purpose, and that the S.C. Department of Revenue can assess a monetary penalty or seek suspension or revocation of my beer and wine permit for a violation of this agreement. This stipulation and agreement will expire in two years from today's date. Signed this 24^th day of May, 2001."
• Dabit is of good moral character.
• The business hours of the proposed location will be Monday through Saturday, 8:00 a.m. to 10:00 p.m. and Sunday, 8:00 a.m. to 8:00 p.m.
• No church, school, or playground is located within five hundred (500) feet of the proposed location.
• The location was permitted since 1996 through 1999 to Petitioner's husband. The permit was revoked in 1999.
• This corner grocery store has been part of the neighborhood for many years.

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

• The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000).
• The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
• The applicant has complied with all the provisions of S.C. Code Ann. § 61-4-250 regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61-4-520(7).
• Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a retail liquor license. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina 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 the witnesses and determine the relevance and weight of any testimony offered.
• 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 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. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as the existence of small children in the area.
• In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, there were four prior violations in 1997 and 1998, of which two involved underage tobacco sales. The other two violations involved an underage transfer of beer and Sunday sale without a license. Mr. Khalil Dabit was the permitee at that time. There have been no incident reports since the Petitioner has been managing the location.
• 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 alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
• Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).
• I find that this location and the operator are suitable for the off-premises sale of beer and wine.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDRED that the Petitioner's application for an off-premises beer and wine permit with the stipulation signed by both parties is GRANTED.

AND IT IS SO ORDERED.

____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

May 31, 2001

Columbia, South Carolina

1. The Protestants in this matter were Cpl. Randall McBrayer of the Charleston Police Department and Mr. Robert Ballard of the Radcliffborough Neighborhood Association.