SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-1310 and 12-60-1320 (Supp. 1997) upon the application for an on-premises beer and wine permit filed with the South Carolina Department of Revenue by Namon Bennett, d/b/a Corner Quick Snack, for a location at the intersection of Cantey Landing Road and Highway 527, RFD 1, Box 114-B, Andrews, South Carolina. Protests were filed alleging that the proposed location is unsuitable. The matter was transmitted to the Administrative Law Judge Division ("ALJD"), and a contested case hearing was held on September 30, 1998. Upon review of the relevant and probative evidence and applicable law, the permit is granted.

The permit was originally protested by Rev. Richard Hillard, Pastor of Mt. Zion AME Church, and the Sheriff of Williamsburg County, Jack McCrea. Subsequently, an unsigned letter addressed to Petitioner's attorney from "The Official Board of Mt. Zion AME Church" asked to replace the protest of Rev. Hillard with a protest by the Official Board. At the contested case hearing, the only person appearing to protest the permit was Rev. Hillard. Over objection, he was allowed to participate in the hearing and give his testimony in opposition to the permit. Rev. Hillard never personally withdrew his protest, and Petitioner was on notice that Rev. Hillard was opposed to the application and the general grounds for his protest.

During the course of the hearing, Petitioner's counsel continuously attempted to impeach Rev. Hillard's credibility by insinuating that Rev. Hillard's protest was motivated by reasons other than his sincere desire to protect the peace and safety of the surrounding community. Counsel's tactics were unnecessary and unconvincing. I found Rev. Hillard to be a reasonable and practical man of the utmost character and acting completely in good faith. His testimony was not lacking in credibility, but it was lacking in factual support. If Rev. Hillard, or another witness, had provided the Court with probative evidence to support the Reverend's accusations of unsavory conduct at the proposed location, I would have found the location unsuitable and denied the permit. The law requires a decision to deny a beer and wine permit to be based upon more than general accusations and conclusions, however; and I am constrained to follow that principle.

By a preponderance of the evidence, I find:

1. Namon Bennett, d/b/a Corner Quick Snack, is the applicant for an on-premises beer and wine permit for a location at the intersection of Cantey Landing Road and Highway 527, RFD 1, Box 114-B, Andrews, South Carolina, having filed an application (AI #119114) with the South Carolina Department of Revenue ("DOR").
2. Written protests to the application were filed by the Williamsburg County Sheriff's Office and the Mt. Zion AME Church, and Petitioner requested a contested case hearing.
3. The matter was transmitted to the ALJD, and timely notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.
4. But for the protest filed, DOR would have issued the permit and license sought. Upon motion granted, DOR was excused from participation in the contested case hearing.
5. The business at the proposed location is to be operated by Namon Bennett.
6. The proposed location is in an unincorporated part of Williamsburg County, South Carolina.
7. The proposed location will operate primarily as a snack shop with seating for four persons.
8. The area surrounding the proposed location is rural and residential.
9. The proposed location is approximately 920 feet from a Seventh Day Adventist church.
10. The proposed location is approximately 125 feet from the nearest residence.
11. The proposed location is approximately seventy-five feet from a playground maintained by Williamsburg County.
12. A business at the location operated by a son of the Petitioner was permitted to sell beer and wine from May 1992 until February 1998.
13. Petitioner lives approximately three miles from the proposed location.
14. The proposed location is approximately 1,015 feet from the Mount Zion AME Church.
15. There are at least three other licensed locations within close proximity to the proposed location and Mount Zion AME Church.
16. The testimony of the Protestant concerning alleged drinking and drug sales outside the location consisted of generalities and conclusions not supported by specific facts or proof.
17. Petitioner is over the age of twenty-one.
18. Notice of the application appeared at least once a week for three consecutive weeks in The Kingstree News and was posted at the location for fifteen days.
19. Petitioner has legally resided in the United States and has held a principal place of abode in South Carolina for more than thirty days prior to the date of application.
20. Petitioner has had no criminal convictions in the past ten years and is a person of good moral character.
21. Petitioner is suitable for the issuance of an on-premises beer and wine permit.
22. The location is suitable and proper for the issuance of an on-premises beer and wine permit.

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

1. The Administrative Law Judge Division has subject matter jurisdiction over contested cases concerning the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260 (Supp. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (1986 & Supp. 1997) and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1997).

1. 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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. The standard of proof in a contested case hearing is a preponderance of the evidence. National Health Corp. v. South Carolina Dep't of Health and Envtl. Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989).

4. As the party asserting the affirmative of an issue, the Petitioner bears the burden to prove he is entitled to a beer and wine permit. 29 Am. Jur. 2d Evidence § 127 (1994); Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:3 (1994).

5. "A person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1997).

6. Petitioner has complied with the requirements of S.C. Code Ann. § 61-4-520(1-5) (Supp. 1997), which sets forth general requirements for the issuance of beer and wine permits.

7. Proper notice of the application for the permit sought was made, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1997).

8. As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

9. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

10. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops,

Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

12. In considering suitability of location, it is relevant to consider the history of the location and to determine whether the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Id.

13. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).

14. Where crime is a factor in a community, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); cf. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (fact finder may consider history of law enforcement problems in the area).

15. "The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches." S.C. Code Ann. § 61-4-520(7) (Supp. 1997).

16. The testimony concerning alleged public drinking and drug sales, consisted of opinions, generalities, and conclusions is without evidentiary support, and does not warrant the denial of the permit on the ground of unsuitability of location. Taylor v. Lewis, supra; Smith v. Pratt, supra.

17. 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 the permit was protested does not serve as a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

18. The applicant meets the statutory requirements to hold an on-premises beer and wine permit.

19. Given the fact that the proposed location has been previously licensed, other licensed locations are in the area, and that the testimony in opposition to the permit lacks probative evidence to support conclusions and opinions expressed by those in protest, the location is suitable and proper for issuance of an on-premises beer and wine permit. Accordingly, the application meets the requirements of S.C. Code Ann. § 61-4-520 and must be granted. Cf. S.C. Code Ann. § 61-4-540 (Supp. 1997).

20. Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(C).

IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue the permit sought by Petitioner.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

October 30, 1998

Columbia, South Carolina