SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2001), § 61-6-910 (Supp. 2001), and §§ 1-23-310 et seq. (1986 and Supp. 2001) for a contested case hearing. The Petitioner, Gussie F. Blackmon, d/b/a Railey's 903 Superette, seeks an on-premises beer and wine permit for the location at 1928 McBee Highway, Jefferson, South Carolina. The Department of Revenue (Department) made a Motion to be Excused stating that but for the protest it received, this license would have been granted. This motion was granted. A hearing was held on this matter on April 5, 2002, at the offices of the Division in Columbia, South Carolina. The Petitioner's wife, Mae Blackmon, testified on behalf of the application. In addition, the Protestant, Max M. Johnson, testified at the hearing and offered the testimony of a witness, Rev. Charles Parott.

FINDINGS OF FACT

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

• Notice of the time, date and place of the hearing was given to the Petitioner, Protestant, and Department.
• The Petitioner seeks an on-premises beer and wine permit for the location known as Railey's 903 Superette, located at 1928 McBee Highway, Jefferson, South Carolina.
• The Department moved to be excused from appearing at the hearing on the ground that it would have granted the permit and licenses but for the protest of Max M. Johnson, who called into question the suitability of the location. Said motion was granted.
• The Petitioner, Gussie F. Blackmon, has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001), concerning residency, age, moral requirements, criminal convictions, reputation for peace and good order in its community, as well as the publication and notice requirements.
• There was no evidence that the proposed location is within close proximity of any church, school or playground.

• Max Johnson, who resides 2 ½ miles from the proposed location, testified that he had no problem with the Blackmons as proprietors. However, Johnson does not believe that their community needs a gas station with an on-premises license because good, hardworking Christians have a right not to be subjected to on-premises consumption. Johnson expressed his concerns that mothers with children and teenage girls would be subjected to alcohol consumption as they were pumping their gas. In addition, Johnson is concerned that the location may be too remote to get a prompt response from law enforcement should a problem arise.
• Johnson's witness, the Reverend Charles Parott, also testified in opposition to the issuance of the permit. Rev. Parott, as a recovered alcoholic and a Minister of the Gospel, opposes the problems that alcohol brings, including increased insurance costs, increased medical costs, and increased costs to the government. In addition, Rev. Parott believes that the consumption of alcohol leads to violence, which he himself has witnessed. As a result, Rev. Parott is opposed not only to the issuance of the permit in question, but the issuance of any license or permit for the consumption of alcoholic beverages.
• The Petitioner's wife, Mae Freeman Blackmon, testified on behalf of the issuance of the permit. Mrs. Blackmon testified that she and her husband are aware of the laws restricting the sale of alcoholic beverages and that they have instructed their employee in that regard. The Blackmons have also posted signs informing patrons that identification is required for the purchase of any alcohol. Finally, Mrs. Blackmon believes that the proposed location is adequately served by law enforcement. In fact, a sheriff's deputy generally sits with them at the proposed location from 7 p.m. to closing on Friday and Saturday nights.

8. I find the proposed location to be suitable for an on-premises beer and wine license.

CONCLUSIONS OF LAW

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

• Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001), S.C. Code Ann. § 1-23-600(B) (Supp. 2001) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2001) the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

• S.C. Code Ann. § 61-4-520 (Supp. 2001), which sets forth the requirements for the issuance of a beer and wine permit, provides, in relevant part:

No permit authorizing the sale of beer or wine may be issued unless:

1)The applicant, any partner of co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.

2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application. ***

5) The applicant is twenty-one years of age or older.

6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.

***

• The Petitioner, Gussie F. Blackmon, has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001), concerning residency, age, moral requirements, criminal convictions, reputation for peace and good order in its community, as well as the publication and notice requirements.

• 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 a permit to sell beer and wine 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.
• 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. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). 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).
• 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 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).
• Permits issued by the State for the sale of beer and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
• Because the sale of beer and wine is a lawful enterprise in South Carolina, a permit may not be denied solely based upon a protestant's moral opposition to alcohol.
• After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine. There is nothing before me to indicate that the Petitioner would operate his business in an unlawful manner or in any way which have a negative impact on his community. I conclude that the Petitioner has met his burden of proof in showing that he meets all of the statutory requirements for holding an on-premise beer and wine permit at the proposed location. I further conclude that the proposed location is a proper one for granting the permit.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Gussie F. Blackmon's application for an on-premises beer and wine permit for the proposed location, known as Railey's 903 Superette, located at 1928 McBee Highway, Jefferson, South Carolina, is granted upon payment of all fees and statutory requirements;

AND IT IS SO ORDERED.

ADMINISTRATIVE LAW JUDGE

April 5 2002

Columbia, South Carolina