SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (Court) 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, Wesley Commons, is a retirement community in Greenwood South Carolina which is affiliated with the United Methodist Church. Wesley Commons seeks an on-premise beer and wine permit for their formal dining area, The Emerald Room. The Department of Revenue (Department) filed a Motion to be Excused, on the basis that but for the protest received from Rev. David T. Templeton (Rev. Templeton), this permit would have been issued. This motion was denied. A hearing on the merits of this case was held on April 26, 2004, 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 Wesley Commons, located at 1110 Marshall Road, Greenwood, South Carolina.

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

notice of the application was also published in a newspaper of general circulation in the area for three consecutive weeks. The protest of Rev. David T. Templeton was timely received by the Department.

3. The principals of the Petitioner, as shown on the application, are all legal

residents of the State of South Carolina and have not had a license or permit revoked. In addition, each principal shown has no criminal record and is of sufficient moral character to

receive a beer and wine permit.

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

and wine. Petitioner runs a dining room which is not open to the general public. In order to purchase beer or wine, a patron would have to be a resident of Wesley Commons, or the guest of a resident.

5. The Protestant, Rev. David T. Templeton, has concerns about the possible

negative influence the presence of alcohol will have on the community. In addition, he is concerned that the Disciplines of the Methodist Church oppose the sale of alcohol.

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 Court 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. Because the tribunal authorized to issue 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 testified that off-duty police officers from the city of Greenwood provide security on the campus of Wesley Commons from 5 PM to 8 AM.

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 Protestant’s arguments against the granting of the license sought herein is that he does not want this type of business, i.e., a business that serves alcohol, associated with a home sanctioned by the Methodist church. 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.Furthermore, the United Methodist Church did not file a protest against this

permit. Mr. Buckshorn, the CEO/President of Wesley Commons, testified that the Board of Trustees of Wesley Commons, which is appointed by the Methodist Conference, sets the policy for the home. The Board voted to approve the application. In addition, several member of the board are members of the clergy, including the Chairman of the Board.

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 Rev. Templeton are understandable, and he exhibited

great credibility in his opposition to the sale of beer and wine at Wesley Commons, his central concern is general moral opposition, which is not directed to any specific problems with Petitioner’s location. I find that this location meets the statutory criteria and shall be permitted.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.

AND IT IS SO ORDERED.

__________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

May 6, 2004

Columbia, South Carolina