Monday, October 20, 2014

SC Administrative Law Court Decisions

CAPTION:
AJ’s Restaurant, LLC, d/b/a AJ’s on Main vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
AJ’s Restaurant, LLC, d/b/a AJ’s on Main
161 W. Main Street, Timmonsville, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0280-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For Respondent Department of Revenue: Dana Krajack, Esquire

For the Protestants: Pro Se
 

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. AJ’s Restaurant, LLC, d/b/a AJ’s on Main, (“Petitioner”) seeks an on-premise beer and wine permit.

Protests to the application were filed with the South Carolina Department of Revenue (“Department”). Because of the protests, the hearing was required.

A hearing in this matter was held on October 19, 2004, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with several Protestants. 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.

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 Petitioner, AJ’s Restaurant, LLC, d/b/a AJ’s on Main, seeks an on-premise beer and wine permit for the premises located in the City of Timmonsville at 161 West Main Street, Timmonsville, South Carolina (“location”).

4.Joe Paz Whitaker, Sr., testified at the hearing that he is the owner of AJ’s Restaurant, LLC, a limited liability company currently in good standing with the Secretary of State.

5.Mr. Whitaker is over the age of twenty-one. He has been a legal resident of the State of South Carolina for the past forty years, and he has maintained his principal place of abode in the State of South Carolina for the same length of time. Mr. Whitaker is of good moral character, and neither Mr. Whitaker nor AJ’s Restaurant, LLC has had a permit or license revoked in the last two (2) years.

6.Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

7.The location is a full service restaurant which operates seven days a week from 11:00 a.m. to 9:00 p.m.. It serves southern cuisine, steaks, seafood, and pasta, and is open for lunch each day. Mr. Whitaker testified at the hearing that he intends to extend the location’s hours if the permit is granted, serving dinner until 10:00 p.m. and remaining open until approximately midnight.

8.The location is located in a historic building in downtown Timmonsville, South Carolina. The building is listed on the National Historic Registry. Mr. Whitaker has spent approximately $200,000 refurbishing the building with historic materials. The location has been in operation since April 1, 2004.

9.Mr. Whitaker also owns two other businesses in Timmonsville and seven other properties on Main Street. He is also a member of the Planning Commission in Timmonsville.

10.Mr. Whitaker is present at the location from approximately 5:00 a.m. to 8:00 a.m., and then from approximately 5:00 p.m. to closing each day. Mr. Whitaker’s wife, Amanda K. Whitaker, will manage the location and is present from 10:00 a.m. to closing each day. Ms. Whitaker is of good moral character.

11.The Protestants question the suitability of the location, citing concerns for safety and parking problems at and near the location.

12.Protestant Claudia H. Askins, who is the Pastor of Jireth Pentecostal Holiness Church, expressed concerns for safety due to the proximity of the location to her residence and church.

13.Reverend Askins lives at 110 N. Keith Street. She and her husband, Protestant James Askins, also own a house at 108 N. Keith Street. Reverend Askins testified at the hearing that the residence at 108 N. Keith Street has been used by the church for the past 1½ years as its place of worship. However, at no time has there been any sign displayed indicating that 108 N. Keith Street is a church. Furthermore, church services ceased at 108 N. Keith Street one month ago. The services are now being held in a building located at 315 W. Main Street. Reverend Askins also testified that she is concerned that problems will arise in the parking area, which is across the street from her home and behind the location, as patrons leave the location. This parking area was purchased by Petitioner from the Timmonsville Presbyterian Church, which is also located behind the location and across from the Protestant’s home. Reverend Askins further testified that she has not had any problems arising from the location so far, nor with any other nearby location that serves beer and wine.

14.Protestant James Askins also testified at the hearing and expressed concerns relating to safety and parking on his premises.

15.There is a convenience store located approximately one hundred 100 feet away from this location, which is permitted to sell beer and wine off-premises. The Timmonsville Police Department is located approximately two blocks from the location and there are also two other churches located in close proximity to the location. However, none of these locations filed a protest to this application.

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 perogative 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).

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.Petitioner meets the statutory requirements for holding an on-premises beer and wine permit at the location. Furthermore, the evidence does not establish that the granting of an on-premise beer and wine permit would have an adverse impact on the surrounding community. The location is in a primarily commercial area and operates as a full service restaurant, which has been in operation since April 1, 2004 without incident. There is also at least one other location in the vicinity that is licensed for the sale of beer and wine. As to safety concerns due to the proximity of the location to the Protestants residence, Reverend Askins testified at the hearing that no problems have resulted from the operation of the location thus far. Furthermore, although not officially established as a church, church services are no longer held across the street from the location at 108 N. Keith Street. Thus, I find that the location is suitable for an on-premises beer and wine permit, and that the permit should be granted.

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 AJ’s Restaurant, LLC, d/b/a AJ’s on Main is GRANTED.

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


November 18, 2004

Columbia, South Carolina