ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF
THE CASE
This
matter comes before the Administrative Law Court (ALC or Court) for a contested
case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2007) and S.C. Code
Ann. §§ 1-23-310 et seq. (1986 & Supp. 2007). Drexel A. Dubose, d/b/a Mini
Mart (Petitioner) seeks an off-premise beer and wine permit for its location at
1807B Jefferson Davis Hwy, Camden, South Carolina.
Respondent
South Carolina Department of Revenue (Department) denied Petitioner's
application for the permit because of timely filed protests by Carla Parker and
Ann Peebles. A hearing in this matter was held at 3:30 p.m. on Tuesday,
December 16, 2008, at the offices of the Administrative Law Court in Columbia,
South Carolina. All parties appeared at the hearing, along with the protestants.
After
listening to the testimony and weighing all evidence presented at the hearing,
this Court finds that Petitioner's off-premises beer and wine permit shall 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 the protestants.
3.
The Petitioner seeks an off-premise beer and wine permit for its location at 1807B
Jefferson Davis Hwy, Camden, South Carolina (proposed location).
4.
The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2006) are
properly established. Public notice of the application was also lawfully
posted at the location and in a newspaper of general circulation.
5.
The location is situated in a commercial area of Jefferson Davis Highway. Other
businesses exist nearby, including those that have beer and wine permits.
6.
Petitioner holds a retail liquor license for a location situated immediately
adjacent to the proposed location. Petitioner plans primarily sell beer and
wine and some snack food items at the proposed location. The hours of operation
will be from 9:00 a.m. to 9:00 p.m., Monday through Saturday. The proposed
location has adequate parking. Petitioner estimates that the proposed location
can accommodate approximately fifteen vehicles. The proposed location offers
adequate lighting. Petitioner has automatic timers which can be programmed to
provide necessary lighting. Petitioner plans to employ two employees. These
employees will operate in shifts. Loitering will not be tolerated in or around
the proposed location. Petitioner has installed bars on windows and an alarm
system in order to enhance security at the proposed location.
7.
Petitioner was cited for an ABC violation for selling liquor to an underage
individual. Petitioner has taken significant steps to guard against further
violations, including terminating the employee who mistakenly sold alcohol to
an underage individual. Petitioner has taken steps to ensure that his employees
will not sell alcohol to underage individuals. Petitioner has installed a “We
ID” system which requires employees to swipe and/or scan all drivers licenses
presented upon purchase. Petitioner has also purchased a CD-ROM containing
employee training techniques regarding the proper sale of alcohol. Petitioner
has also solicited advice from SLED agents on how to properly guard against the
sale of alcohol to underage individuals.
8.
Ms. Parker owns and operates a business located in the proximate area of the
proposed location. Her protest centers on her concern for the overall health
and safety of community. Ms. Parker is a life-long resident of the county and
wants to foster a home-town, community oriented environment in Camden. Ms.
Parker finds alcohol to be morally offensive and has endured the deaths of
multiple family members who died as a result of alcohol. Ms. Parker feels that
this proposed location is too close to a proposed school that is due to be
constructed in the area. Ms. Parker feels that the presence of alcohol will
only increase the level of crime in the area, which in turn will lead to
increased law enforcement costs.
9.
Ms. Peebles protests the issuance of this permit due to the death of her
daughter in an alcohol-related traffic accident. Ms. Peebles now has to care
for her grandson who lost his mother in the accident. Ms. Peebles hopes that
the area around the proposed location will one day be alcohol free.
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. 2007) 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. 2007) 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. 2007) 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 118 (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 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). 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; Taylor v. Lewis,
261 S.C. 168.
“A
liquor license or permit may also be properly 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).
4.
In reaching a decision in this matter, this tribunal is constrained by
the record before it and by the applicable statutory and case law. Here,
Petitioner meets all of the statutory and regulatory criteria enacted by the
South Carolina General Assembly for the issuance of a beer and wine permit.
There has not been a sufficient evidentiary showing that the location is
unsuitable for Petitioner's proposed beer and wine sales or that the issuance
of the permit would have an adverse impact on the surrounding community.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the Department resume processing Petitioner's application
for an off-premise beer and wine permit.
AND
IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
December 17, 2008
Columbia, SC
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