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. §61-2-90 (Supp. 2002) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2002) for a contested case hearing. The Petitioner, Elaine Gartman, is the owner of a restaurant, Elaine’s Place. She 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 protest received from Edmund First Baptist Church (the Church), this permit would have been issued. This motion, however, was denied by Order dated October 8, 2003. Edmund First Baptist Church filed a Motion for Leave to Intervene on October 1, 2003. This motion was granted by Order dated October 20, 2003. A hearing on the merits of this case was held on October 22, 2003, 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 as indicated above.

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 Elaine’s Place, located at 6312 Edmund Highway, Lexington, South Carolina.

2.Notice of the application was lawfully posted for fifteen days at the location, and

notice of the application also ran in a newspaper of general circulation in the area. The protest of Edmund First Baptist Church was timely received by the Department.

3. Petitioner is a legal resident of the State of South Carolina and resides adjacent to

the proposed location.

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

receive a beer and wine permit.

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

and wine. Petitioner runs a family oriented restaurant and patrons have requested that she serve beer with the chicken wings that she sells. She would be open from 11 AM to 9 PM Monday through Saturday, and serve only lunch on Sunday. She would not serve alcohol on Sunday. Mrs. Gartman testified that the alcohol would be strictly for on-premises consumption and that patrons would have to purchase food to buy alcohol.

6. The Protestant, Edmund First Baptist Church, has concerns about the possible

negative influence the presence of alcohol will have on the Christian Kingdom Academy school which the Church runs for students who have had difficulty in a traditional classroom. The members of the Church feel that alcohol will be an unnecessary temptation in the area to these students, and to others who have had addiction problems in the past.

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. 2002).

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.Licenses and 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 license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

5.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).

6.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 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, dealing with a Retail Liquor License). 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.

7.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 license 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). The Petitioner presented testimony that the location is frequented by law enforcement officers from several different agencies, who come to dine at the restaurant.

8.In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license 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). Mr. Branham, a representative of the Church, testified that he has had no complaints against Elaine’s Place previously.

9.Much of the Protestants’ arguments against the granting of the license sought herein is that they do not want this type of business, i.e., a business that serves beer, in their community. However, an aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of an application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981).

10.There are two fences separating the Petitioner’s location from the Church. In

addition, there were formerly several pine trees between the restaurant and the Church, but the Church had them removed.

11.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 in this case. I find that this location is suitable for the on-premises sale of beer and wine.

12.Although the concerns of the Church are understandable, and the witnesses

exhibited great credibility in their opposition to the sale of beer and the possible temptations to some of the people involved in its missions, I find that the central concerns are general moral opposition, and not directed to any specific problems with Petitioner’s location. I find that this

location shall be permitted with the restriction on the permit that beer shall be consumed only inside the building, as Mrs. Gartman agreed at the hearing. Moreover, Mrs. Gartman has agreed not to sell beer without a food purchase.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 an on-premises beer and wine permit to the Petitioner with the following Restriction: There shall be no alcohol consumed outside the building or sold for off premises consumption at 6312 Edmund Highway.