South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Universal Enterprises of Columbia, LLC vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Universal Enterprises of Columbia, LLC, d/b/a One Love Store
901 N. Main St, Columbia, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0299-CC

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

For the Protestant: Cynthia M. Leitner, Pro Se

For the Department of Revenue: Excused
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. The Petitioner, One Love Store, seeks an off-premise beer and wine permit for its location situated at 5901 N. Main Street, Columbia, South Carolina. Respondent South Carolina Department of Revenue (Department) filed a Motion to be Excused setting forth that but for the protest of the Protestant, this permit would have been issued. That Motion was granted by my Order dated September 23, 2004. A hearing was held before me on October 26, 2004, at the offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina.


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 proof upon the parties and the Protestant, I make the following Findings of Fact by a preponderance of the evidence:

1.Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestant, and the Department.

2.The Petitioner seeks an off-premise beer and wine permit for One Love Store located at 5901 N. Main Street, Columbia, South Carolina. This location has been previously permitted for approximately the past four (4) years for the sale of beer and wine off-premises.

3.The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2003) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4.One Love Store is a convenience store/gas station located on North Main Street in Columbia. The site is in Richland County within the city limits of Columbia. It is in a commercial area situated on the corner of North Main Street and Prescott Road adjacent to the North Twenty One Terrace neighborhood. The location has been run as a convenience store for several years by the current owner, Harrison Mutua Munywoki, and his brother. However, this permit application is in Mr. Munywoki’s name only as the brothers have decided to divide their business interests. Adjacent to this location is a liquor store housed in the same building structure. Also, a Citgo gas station and an Eckerd drug store that sell beer and wine off-premises are both located across from the proposed location.

The location is open seven (7) days a week, operating from 7:00 a.m. to midnight, Monday through Saturday, and 9:00 a.m. to 11:00 p.m. on Sundays. Mr. Munywoki testified that he is at the location most of the day and personally operates this business. The location has adequate parking and lighting, with canopy lighting over the gas pump area and “no loitering” signs posted outside the store. One Love Store also has had no significant problems with loitering as local law enforcement has been specifically authorized by Mr. Munywoki to enter this property and enforce the law should the need arise.

5.The issuance of the permit is contested by Cynthia M. Leitner, president of the

North Twenty One Terrace Neighborhood Association. Her main concerns are that the integrity of her neighborhood is being challenged by the over-saturation of locations permitted for the sale of beer, wine and alcohol in this vicinity. Although she acknowledged that local law enforcement does help by parking a patrol car at One Love Store as a deterrent, she contends that this area does have loiterers who deposit trash around and behind the location. She testified that she and other members of the neighborhood association have spent time picking up trash around the location. Some of the trash, she explained, could be attributable to the liquor store next to the location. Also, Ms. Leitner expressed concern that the signage posted outside the location blocks the view of traffic turning from Prescott Road onto North Main.

6.After the conclusion of the Protestant’s presentation of her concerns, Mr. Munywoki agreed to stipulations regarding the signs, trash and loitering to be placed upon his permit to address her concerns. Those stipulations are set forth below.

7.Ms. Leitner’s arguments appear to be based on a sincere concern for her surrounding community. However, in order to deny this permit, direct evidence of an adverse impact on the community is necessary. The proposed location seems to be a commercially thriving area that has been permitted for the past four (4) years without incident. The evidence did not establish that the granting of an off-premise permit for this location will have an overall adverse impact on the community especially in light of the stipulations made by the Petitioner. There also was no evidence of a prevailing criminal problem that could be exacerbated by granting the permit. Thus, I find that the proposed location is suitable for an off-premise beer and wine permit with the stipulations set forth below.


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 (1986 & Supp. 2003) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2.S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2003) set forth the requirements for the issuance of a beer and wine permit.

3.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 also proper for this Court to consider any evidence that demonstrates the 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). Additionally, it is 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, supra.; Taylor v. Lewis, supra.

“A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). Nevertheless, 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). I conclude that this proposed location would not adversely impact this community if the location is operated in adherence to the stipulations/restrictions set forth below.

4.Permits and licenses issued by this State for the sale of liquor, beer and wine are not property rights. They are, rather, 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, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-200.1(I) (eff. 6/27/03) authorizing the imposition of restrictions on permits, provides:

Stipulations. 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 off-premise beer and wine permit for Universal Enterprises of Columbia, LLC, d/b/a One Love Store, be granted, upon the Petitioner entering into a written agreement with the Department incorporating the following stipulations/restrictions set forth below:

1.The Petitioner shall move all signage outside the location so that it does not interfere with vehicular views of traffic on Prescott Road and North Main Street.

2.The Petitioner or his employees shall prohibit loitering, the consumption of beer or wine, loud profanity and public urination in the areas around the 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 their request.

3.The Petitioner or his employees shall routinely pick up litter and debris strewn by his patrons on the grounds of the location at least twice daily.

IT IS FURTHER ORDERED that a violation of the above stipulations/restrictions 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 off-premise beer and wine permit to the Petitioner upon payment of the proper fees and costs.

AND IT IS SO ORDERED.



Ralph King Anderson, III

Administrative Law Judge


November 4, 2004

Columbia, South Carolina


 

 

 

 

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