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, Adrian N. Doran, is the owner of a business, Big A's Corner Store and Grill. He seeks an on-premise beer and wine permit 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. 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. The parties were present and protestants appeared.

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 for the establishment

known as Big A's Corner Store and Grill, located at 1520 Smyrna Road, Elgin, South Carolina.

2. Adrian N. Doran, the owner of Big A's Corner Store and Grill was born on

February 2, 1955 and was and was 46 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 seventeen (17)

years and has maintained his principal place of abode in the State of South Carolina for the same length of time.

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

a beer and wine permit.

6. The location has not been permitted previously for the on-premises sale of beer and

wine. Since Petitioner purchased the property in 1999 he has been running it as a convenience store. The Petitioner intends to run his store and grill from 6:00 a.m. until 10:00 p.m., serving breakfast, lunch and dinner. He will not have live entertainment.

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 Kershaw County Sheriff's Office has concerns about the potential increase of

driving under the influence of alcohol that a permitted establishment will bring. This store is on a road with much vehicle traffic. He and Protestant Sheila Bailey are concerned because of any children present in the area and the potential for increased hazardous driving as well as noise and rowdiness from drunk patrons. Both Protestants admit that school children do not walk past this store to or from school.

• Carl Herring is the executive director of a residential school across the

street from the store. He testified as a witness on behalf of the Protestants. The school services autistic children. He is concerned about a permitted establishment so close to the school. However, he admits that his students are not allowed to leave the school property unescorted and that in the few runaway incidents they have had, the students have not left school property.

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 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).

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).

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 and wine, did not object to the granting of a permit or license in this case. Furthermore, even the Protestants who knew Mr. Doran testified there was no reason to believe he would run anything other than a lawful establishment conforming to the standards of the community. Further, while there are children in the surrounding neighborhoods, it does not appear that they walk by or play in the immediate area of the store. The residents and students of Pine Grove do not leave school property unescorted. I find that this location is suitable for the on-premises sale of beer and wine.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 is GRANTED upon payment of any required fees and costs by the Petitioner to the Department.

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

AND IT IS SO ORDERED.

__________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

October 25, 2001

Columbia, South Carolina