SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-2-90 (Supp. 2000) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2000) for a contested case hearing. The Petitioner, Maria J. Floyd, is the owner of a business, Junkyard at Water Side, which is primarily a restaurant. She seeks an on-premise beer and wine permit and a business (restaurant) minibottle license for the establishment. The Department of Revenue (Department) filed a Motion to be Excused setting forth that but for the protests of the Protestants, this permit would have been issued. However, this motion was denied. The Protestant, Newberry County Sheriff's Office, filed a Motion for Leave to Intervene which was granted by me on July 12, 2001. A hearing was held on this case on July 31, 2001, at the offices of the Division in Columbia, South Carolina.

Notice of the time, date, place, and subject matter of the hearing was provided to all parties at least thirty (30) days prior to the hearing date.

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

1. The Petitioner seeks an on-premises beer and wine permit and a restaurant minibottle

license for the establishment known as Junkyard at Water Side, located at 850 Marina Way, Prosperity, South Carolina.

2. Maria Floyd, the principal in Junkyard at Water Side, was born on December 6, 1951

and was 49 years old at the time of the hearing.

• Notice of the application was lawfully posted both at the location and in a newspaper

of general circulation.

4. Petitioner has been a legal resident of the State of South Carolina for over thirty (30)

days and has maintained her principal place of abode in the State of South Carolina for over thirty (30) days prior to the application.

5. The Petitioner has no criminal record and is of sufficient moral character to receive

a beer and wine permit and a restaurant minibottle license. ⁽¹⁾

6. The location has been permitted previously for the on-premises sale of beer, wine and

mini-bottles since 1992. Petitioner has been operating under a temporary permit since May 2000. The business opens in the morning and remains open until late in the evening. The latest the establishment is open is on Friday nights when it remains open until 2:00 a.m.

7. Floyd has not had any other permits revoked within the past three (3) years and has

had no violations since operating under a temporary license.

8. The Newberry County Sheriff's Office has responded to disturbance calls at the

establishment; however, most, if not all, were when the previous business was still at the proposed location. No residents of the area protested the application. CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Judge Division has jurisdiction in this matter

pursuant to S.C. Code Ann. §61-2-260 (Supp. 2000).

2. 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).

3. The applicant has complied with all the provisions of S.C. Code Ann. § 61-4-520 and §61-6-110 regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61-4-520(6) and (7) and §61-6-110.

4. 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). 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). 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 or license 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). The fact that the establishment has been licensed for the past nine years has bearing on the consideration of suitability. There must be a showing that the location is somehow less suitable now than in the past.

5. 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).

6. 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.

7. 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). In this instance there was not specific and credible testimony which, by a preponderance of the evidence, demonstrated that granting the permit would have a detrimental impact on the community and place an undue burden on local law enforcement.

The Department of Revenue, which is the governmental body charged with regulating and enforcing violations concerning permits and licenses involving the sale of beer, wine or alcohol, did not object to the granting of a permit or license in this case. Furthermore, this location has been permitted in the past. I find that this location is suitable for the on-premises sale of beer, wine, or minibottles.ORDER

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

ORDERED that the Petitioner's application for an on-premises beer and wine permit and a business minibottle license is GRANTED.

IT IS FURTHER ORDERED that the Department of Revenue issue a beer and wine permit and a restaurant minibottle license.

AND IT IS SO ORDERED.

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CAROLYN C. MATTHEWS

Administrative Law Judge

August 22, 2001

Columbia, South Carolina

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