ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 61-2-90 (Supp. 2003), § 61-4-520 (Supp. 2003), and S. C. Code Ann. §§ 1-23-310 et
seq. (1986 & Supp. 2003), for a contested case hearing. Marilyn Holmes, d/b/a Lady T’s One Stop
Shop (“Applicant” or “Petitioner”) seeks an on-premise beer and wine permit.
Carl J. Croft, Vera Louise Pringle, and Martha McElveen Horne, Esquire, on behalf of the
City of Sumter (“Protestants”), each filed a protest to the application with the South Carolina
Department of Revenue (“Department”). Because of the protests, the hearing was required. The
Department filed a Motion to be Excused setting forth that but for the protest, this permit would have
been issued. By previous order, this motion was denied.
A hearing in this matter was originally scheduled on July 14, 2004. However, at the beginning
of that hearing, the Court ordered that the matter be rescheduled to allow the parties time to resolve
discovery issues still remaining at the time of the hearing. Thereafter, counsel for Petitioner filed a
Motion for an Expedited Hearing because Petitioner’s temporary 120-day permit, issued during the
pendency of this application, was to expire on July 21, 2004. This motion was granted and a hearing
in this matter was held on July 27, 2004, at the offices of the Administrative Law Court in Columbia,
South Carolina. All parties and Protestants appeared at the hearing. Evidence was introduced and
testimony was given. After carefully weighing all the evidence, this tribunal finds that the on-premises
beer and wine permit should be granted with restrictions.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of evidence:
1.The ALC has personal and subject matter jurisdiction.
2.Notice of the time, date, place and subject matter of the hearing was timely given to
all parties and Protestants.
3.The Applicant, Marilyn Holmes, d/b/a Lady T’s One Stop Shop seeks an on-premise
beer and wine permit for the premises located in the City of Sumter at 502A West Liberty Street,
Sumter, South Carolina (“location”).
4.Marilyn Holmes is the sole owner of this business. She lives approximately one block
from the location. Also, she currently operates a printing company, H&H Printing, in Sumter, South
Carolina.
5.Applicant is over the age of twenty-one. She has been a legal resident of the State of
South Carolina for the past forty-six years, and she has maintained her principal place of abode in the
State of South Carolina for the same length of time. Applicant is of good moral character and has
never been convicted of a crime.
6.Notice of the application was lawfully posted both at the location and in a newspaper
of general circulation.
7.Applicant has never held a beer and wine permit.
8.The location is a small convenience store and grill which operates from 6:30 a.m. to
8:30 p.m. each day. The store offers for sale items such as bread, laundry detergent, and everyday
essentials. The store also has a grill and several small booths where patrons may dine in. Lunch is
served beginning at 11:30 a.m. each day. In addition to the convenience store and grill, Petitioner
plans to open a retail package store in another part of the building and also to move her printing
business to the location.
9.Applicant’s sister, Evelyn Whaley, and her niece, Nicole Cooper, operate the location.
Ms. Whaley, being the store’s manager, is primarily responsible for the day to day operations. Both
Ms. Whaley and Ms. Cooper are of sufficient moral character. Ms. Whaley’s work hours are from
6:30 a.m. to close each day and Ms. Cooper’s hours are from 7:30 a.m. to 6:00 p.m. each day.
Applicant is also present at the store from 6:30 a.m. to approximately 9:00 a.m. and then from
approximately 3:00 p.m. to closing each day.
10.The location was operated by its previous owner as Lucky’s Irish Pub. However, its
hours of operation varied. Because Lucky’s Irish Pub held a permit, Applicant was issued a temporary
permit pending this application hearing, which expired on July 21, 2004.
11.The Protestants question the suitability of the location, citing concerns for personal
safety, and concerns that issuing the permit could result in an increase of criminal activity at or near
the location. Protestants also cite concerns about litter and parking problems at and near the location.
12.Protestant Carl J. Croft, who has a civil engineering business in the office building
across the street from the location, expressed concerns for safety, litter and parking at the location.
He testified that he would not feel safe leaving his office after dark with alcohol consumption taking
place across the street at the location. He was also concerned that litter would not be picked up and
that the mud holes at the location would worsen. Petitioner testified that she would fill the mud holes
with crush and run and that litter is picked up daily and will continue to be picked up daily in the
future.
13.Protestant Vera Louise Pringle lives next door to the location. She expressed concerns
relating to safety and noise if the business were allowed to operate during late hours, as well as
concerns that the area outside the building would not be kept clean.
14.Major Perry Herod from the Sumter City Police Department expressed concern that
the location would become a “neighborhood hang out” for people which could result in increased
calls for loitering, litter, and other disturbances.
15.Mayor Pro-Tem William S. Randolph testified that he feared the location would
contribute to an increase in drugs and crime in the area.
16.This location is situated within close proximity to several residences. However, there
are also several other businesses in close proximity, including a gas station and a large office building
with numerous tenants located across the street.
17.Petitioner has operated the current location for approximately four months without
any problems occurring at the location and without any complaints from local residents.
18.This location has been previously permitted for the sale of beer and wine on-premises,
which is a factor weighing in favor of authorizing the permit. Furthermore, though the previous
location had a large volume of calls for police assistance, Petitioner testified that she does not intend
to operate the location in the same manner as that of the previous owner.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2003) grants jurisdiction to the Administrative
Law Court to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2003) sets forth the requirements for the issuance
of a beer and wine permit.
4.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 of an applicant for alcohol permits and
licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984).
5.The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d
854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority
to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate
the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996).
6.Although "proper location" is not statutorily defined, the Administrative Law Court
is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular
location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The determination of
suitability of 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 upon
the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335
(1985). In determining the suitability of a location, it is proper for this Court to consider any
evidence that demonstrates any adverse effect the proposed location will have on the community.
Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to
consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972);
Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, 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, et al., 261 S.C. 168, 198
S.E.2d 801 (1973).
7.Unless there is 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). I conclude
that this proposed location would not adversely impact this community if the location is operated with
strict adherence to the restrictions set forth below.
8.Permits and licenses issued by this state for the sale of liquor, beer and wine are not
property rights. Rather, they are privileges granted in the exercise of the state’s police power to be
used and enjoyed only so long as the holder complies with the restrictions and conditions governing
them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit,
is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax
Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9.Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (effective June 27, 2003) authorizing
the imposition of restrictions on permits, provides:
Any written stipulation and/or agreement which is voluntarily entered
into by an applicant for a permit or license between the applicant and
the Department, if accepted by the Department, will be incorporated
into the basic requirements for the enjoyment and privilege of
obtaining and retaining the permit or license and shall have the same
effect as any and all laws and any and all other regulations pertaining
to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall
constitute sufficient grounds to revoke said license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit of Marilyn Holmes,
d/b/a Lady T’s, One Stop Shop be granted upon the Petitioner entering into a written agreement with
the Department incorporating the following restrictions set forth below:
1.Petitioner shall only operate between the hours of 6:30 a.m. and 8:30
p.m. each day.
2.Petitioner shall construct a wooden privacy fence, with a maximum
height of 6 feet, between the location and Protestant Pringle’s
property within sixty (60) days of the date of this order. Petitioner is
to notify Ms. Pringle of the construction date for the fence so that Ms.
Pringle may have input as to the height of the fence at different
locations along their common property line.
3.Petitioner shall install, within sixty (60) days of the date of this order,
a light with a motion sensor at the rear of the building, or other
light(s) if such are needed to light the areas behind the building, so as
to ensure that all areas to the rear of the building are lighted at night.
4.The Petitioner shall fill all pot holes and mud holes in the parking area
adjacent to the building with crush and run within thirty (30) days of
the date of this Order.
5.The Petitioner or her employees shall prohibit loitering, the
consumption of beer or wine, loud profanity and public urination in
the areas around the proposed location. The Petitioner must instruct
any loiterers who are present to leave the premises or come inside the
location and promptly notify law enforcement if the loiterer fails to
quickly comply with the request.
6.The Petitioner or his employees shall pick up litter and debris on the
grounds of the location and its adjacent areas daily before closing.
IT IS FURTHER ORDERED that a violation of the above restrictions, the occurrence of
which may be reported to the Department, will be considered a violation against the permit and may
result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department resume processing the Petitioner’s
application and issue an on-premise beer and wine permit to the Petitioner upon payment of the
proper fees and costs.
AND IT IS SO ORDERED.
____________________________
Marvin F. Kittrell
Chief Administrative Law Judge
July 29, 2004
Columbia, South Carolina |
