South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Drexel A. Dubose, d/b/a Mini Mart vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Drexel A. Dubose, d/b/a Mini Mart

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0449-CC

APPEARANCES:
n/a
 

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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