Tuesday, October 21, 2014

SC Administrative Law Court Decisions

CAPTION:
Warren S. Holland, d/b/a Holland's vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Warren S. Holland, d/b/a Holland's

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
98-ALJ-17-0459-CC

APPEARANCES:
Warren S. Holland, pro se Petitioner

Arlene D. Hand, Esquire, for Respondent (excused)

Major John W. Tate, Lexington County Sheriff's Department, pro se, Spokesperson for Protestants
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-1310 and 12-60-1320 (Supp. 1997) upon the application of Warren S. Holland, d/b/a Holland's, 2001 Augusta Highway in Lexington, for an on-premises beer and wine permit and minibottle license, filed with the South Carolina Department of Revenue ("DOR"). Protests were filed alleging that the proposed location is unsuitable. The matter was transmitted to the Administrative Law Judge Division, and a contested case hearing was held on September 21, 1998. Upon review of the relevant and probative evidence and applicable law, the permit is granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

Notice of the time, date, place and subject matter of the hearing was given to the parties and protestants.

Warren S. Holland is the applicant for an on-premises beer and wine permit and a minibottle license for a location at 2001 Augusta Highway, Lexington, South Carolina, having filed an application with DOR, AI #115438 and AI#115439.



Major John Tate of the Lexington County Sheriff's Department protested the application on the basis of concerns by residents that the proposed location will produce unacceptable noise.

Marion Ringer protested the application based on concerns over traffic, noise, inconvenience, and property values.

The proposed location is an unimproved parcel in an unincorporated part of Lexington County, South Carolina, on Augusta Highway (a/k/a U.S. Highway 1), a busy, commercial thoroughfare.

The proposed location will operate primarily as a family-oriented restaurant of approximately 5,000 square feet featuring pool tables, children's games, and an ice cream parlor. Alcohol sales will not be the primary emphasis of the business, and the location will not stay open after midnight.

Petitioner and two of his adult children will own and operate the business at the proposed location.

Petitioner will have actual control and management of the business proposed to be operated.

Construction of the proposed location has not been completed, and the proposed restaurant has not yet been issued a Class "A" restaurant license.

The proposed location will seat at tables between fifty and one hundred persons simultaneously for the service of meals.

The proposed location is not within five hundred feet of any church, school, or playground, as computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground.

Regardless of whether the permit and license sought are issued, Petitioner intends to develop the proposed location for some type of commercial business.

The proposed location is zoned for a wide variety of commercial uses, such as a restaurant and/or bar.

The area surrounding the proposed location is a mixture of commercial and residential properties.

Immediately adjacent to the proposed location is Reflections, a banquet and reception hall which regularly serves alcoholic beverages.

Other commercial businesses in close proximity to the proposed location include several junk yards, a building supply company, an upholstery shop, and mobile home sales businesses.

U.S. Highway 1 is a four-lane highway with a speed limit of 55 miles per hour and is a commercial corridor with heavy traffic.

Permitting the proposed location will not significantly increase traffic in the area.

The nearest residence is located 425 feet from the proposed location, on the opposite side of U.S. 1.

The proposed location is situated in a "low call" area for the Lexington County Sheriff's Department.

The Lexington County Sheriff's Department will have no problem responding to any emergency calls from the proposed location or the surrounding area.

The operation of the proposed location will not be burdensome upon the law enforcement resources of the area, and permitting the proposed location will not strain law enforcement.

Lexington County has a noise ordinance which neighboring residents and local law enforcement officials may enforce if the proposed location creates excessive noise.

The granting of the beer and wine permit and minibottle license will not negatively affect the community.

The testimony of those opposing the requested license or permit consists primarily of opinions, generalities, and conclusions not supported by facts.

Except for the protest filed, the South Carolina Department of Revenue would have issued the permit.

The location is suitable for the issuance of an on-premises beer and wine permit.

The location is suitable for the issuance of a business sale and consumption (minibottle) license.

Notice of the application appeared at least once a week for three consecutive weeks in The State and was posted at the location for fifteen days.

The applicant, and his partners and co-shareholders are of good moral character.

The Petitioner is over the age of twenty-one.

The applicant is a legal resident of the United States; has been a resident of this State for at least thirty days before the date of application; and has maintained his principal place of abode in this State for at least thirty days before the date of application.

Petitioner has not been convicted of a felony within ten years of the date of application.

Petitioner has never had a beer or a wine permit revoked.

The applicant is suitable for the issuance of an on-premises beer and wine permit.

The applicant is suitable for the issuance of a business sale and consumption (minibottle) license.

CONCLUSIONS OF LAW

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

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).

This tribunal has personal jurisdiction over the parties.

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).

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).

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

Statutory provisions governing biennial minibottle licenses and licensees are found in the Alcoholic Beverage Control Act, S.C. Code §§ 61-6-10 et seq. (Supp. 1997) ("ABC Act").

"No person, corporation, or organization for whose premises a license is required pursuant to subarticle 1 of this article may knowingly allow the possession or consumption of alcoholic liquors upon the premises unless a valid license issued pursuant to Section 61-6-1820 has been obtained and is properly displayed." S.C. Code Ann. § 61-6-1800 (Supp. 1997).

S.C. Code Ann. § 61-6-20(2) (Supp. 1997) provides:

"Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

Since Petitioner will conduct a business bona fide engaged primarily and substantially in the preparation and serving of meals, he will meet the requirements of S.C. Code Ann. § 61-6-1820(1) and S.C. Code Ann. § 61-6-1610 (Supp. 1997) upon being granted a Class "A" restaurant license by DHEC.

Petitioner and the proposed location meet the requirements set forth in S.C. Code Ann. § 61-6-1820 for issuance of a minibottle license.

The proposed location complies with S.C. Code Ann. § 61-6-120, which provides:

The department shall not grant or issue any license . . . if the place of business is . . . within five hundred feet of any church, school, or playground situated outside of a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground . . . .

The proposed location is suitable and proper for a minibottle license.

"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).

Petitioner meets the statutory requirements set forth in S.C. Code Ann. § 61-4-520 (Supp. 1997) to hold a beer and wine permit.

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).

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).

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).

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. Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154, 157 (1996), citing McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

When the relevant testimony of those opposing the permit consists of opinions, generalities, and conclusions unsupported by fact, the denial of a permit on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). Such unsupported allegations form an insufficient basis for denial. 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).

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).

Given the commercial nature of the surrounding area and the nature of the proposed business activity, the proposed location is a suitable one for the issuance of an on-premises beer and wine permit and a business sale and consumption (minibottle) license, pursuant to S.C. Code Ann. § 61-4-520(6) and (7)(Supp. 1997).

The application should be granted as it meets all legal requirements, including suitability of location, for the issuance of an on-premises beer and wine permit and a minibottle license.

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).

ORDER

IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue an on-premises beer and wine permit to Petitioner for a location at 2001 Augusta Highway, Lexington, South Carolina.

IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue a minibottle license to Petitioner for a location at 2001 Augusta Highway, Lexington, South Carolina, upon the payment of the required fees and the issuance by the Department of Health and Environmental Control of a Class "A" restaurant license.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

October ____, 1998

Columbia, South Carolina