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. 2003) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2003) for a contested case hearing. The Petitioner, Walter Gibson, d/b/a Toni’s Restaurant, runs a restaurant/ice cream parlor located at 614 Kaminski Street in Georgetown. Walter Gibson is the owner of Toni’s Restaurant. He seeks an on-premise beer and wine permit for the restaurant/ice cream parlor. The Department of Revenue (Department) filed a Motion to be Excused setting forth that but for the protests received, this permit would have been issued. This motion, however, was denied. The protestant, City of Georgetown, filed a consent order to intervene on March 17, 2004. A hearing on the merits of this case was held on March 18, 2004, 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 Toni’s Restaurant, located at 614 Kaminski Street, Georgetown, 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 concerns of the Protestants listed above were timely received by the Department.

3. Walter Gibson, the owner of Toni’s Restaurant, is a legal resident of South Carolina.

He has a criminal record of a drug offense over ten years ago. He served probation and has had no subsequent convictions. I specifically find this witness to be highly credible. He has worked hard to improve his community and has a vested interest in seeing the area do well. He owns several of the buildings, both commercial and residential, in the area and rents them to various tenants. He specifically has a “zero-tolerance” policy on drugs. If any tenant is found with any drugs, he or she is immediately evicted.

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

and wine.

5.The location is in a mixed residential-commercial area of Georgetown. There are

several businesses and residences in the immediate area. The location has limited parking and limited seating. The business is primarily take-out, although there are approximately fourteen seats in the restaurant for on premises purposes.

6. The Protestant and Intervenor are concerned about the presence of the students, both

children and adults, at the Howard School across the street and down the block from the proposed location. In addition, they express concern for the children at the day care next door to Toni’s Restaurant. Despite these concerns, the Protestant and Intervenor were unable to express any specific, admissible evidence that this location has had problems in the past. In addition, no one from the day care filed a valid protest on this location.

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. 2003).

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).

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).

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 alcohol, in their area. 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). In addition, the small size of the location negates many of the concerns of the Protestant and Intervenor.10.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.

11. The Petitioner did have a conviction for a drug offense over ten years ago. He served

probation, and has not had any convictions since. If someone were trying to impeach Mr. Gibson’s testimony, evidence of this conviction would not be admissible because of the time since the conviction. SCRE 608(b). I find that Mr. Gibson’s commercial success since the conviction outweighs any negative impact of this ten year old conviction.

12. I find that this location shall be permitted. In addition, although I do not make light

of the concerns of the Intervenor and Protestant regarding the availability of alcohol near students with a troubled past, I believe that the presence of Toni’s Restaurant could be used as a positive reinforcement by the school. The administration could point out to the students that despite whatever difficulties they have had in the past, they can overcome these issues, as Mr. Gibson has done. Despite his past trouble with law enforcement, Mr. Gibson has become a businessman and landlord, and he has worked hard to turn his life around. He should be seen as an inspiration to the students.

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.