SC Administrative Law Court Decisions

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. Thomp’s Planahead Grocery, Inc. (Petitioner) seeks an on and off-premise beer and wine permit.

Protests to the application were timely filed with the South Carolina Department of Revenue (Department). Because of the protests, the hearing was required. The City of Greenville, South Carolina filed a Motion to Intervene, which was granted by Order dated November 29, 2004.

A hearing in this matter was held on December 15, 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 both the on and off-premise beer and wine permit should be denied.

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.Thomp’s Planahead Grocery, Inc., seeks an on and off-premise beer and wine permit for its location at 101 S. Hudson Street, Greenville, South Carolina (location).

4.Robert L. Thompson is the sole shareholder of Thomp’s Planahead Grocery, Inc., which is listed in good standing with the office of the Secretary of State.

5.Mr. Thompson is over the age of twenty-one. He has been a legal resident of the State of South Carolina his entire life, and he has maintained his principal place of abode in the State of South Carolina for the same length of time.

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

7.Mr. Thompson was convicted of disorderly conduct on June 6, 1988 and for distribution of crack cocaine on January 6, 1992 in Greenville County. On the later charge, he was sentenced to fifteen years, suspended upon the service of 18 months, payment of a $1,000.00 fine and three years probation. On September 26, 1995, the South Carolina Board of Probation, Parole, and Pardon Services issued a Certificate of Pardon. The court finds that Petitioner has been a good citizen since exiting the prison system, has not had any criminal charges since that time and meets the standard of one having good moral character sufficient to qualify for the issuance of a permit to sell beer and wine.

8.Petitioner has not had a permit or license revoked in the last two (2) years.

9.Petitioner is purchasing the location under a Bond for Title. On the application, the business is described as a “fast food restaurant, grocery store & pool room with video machines.” At the hearing, Petitioner testified that he operates a grocery store with full service delivery directly to customers. There is also an area of the store with a bar and some tables and chairs. Petitioner serves such items as hamburgers, hotdogs, and fried fish in this area. There are also three pool tables in the location. Petitioner believes that if he can sell beer and wine for on premises consumption, he can generate more income. Petitioner’s hours of operation will be from 10:00 a.m. to 2:00 p.m. and 5:00 p.m. to 12:00 p.m. Monday through Saturday. The store is closed on Sundays.

10.Both the City of Greenville and several Protestants testified against the issuance of the beer and wine permit. They question the suitability of the location, citing concerns for safety due to increased crime and its effects on efforts to improve the quality of life of the residents in the neighborhood. Further, they question to the effect it could have on the many homeless men who live or stay at the rescue mission next door since it would make the purchase of alcohol much easier for them.

11.Lt. Randy L. Evett of the Greenville Police Department testified at the hearing. He is in charge of the Narcotics Division. He testified that the crime rate is fairly high in the immediate area of the location. He also testified that there were numerous calls for police assistance when the location was operated by former permittees under different names. He noted that the calls have decreased since the bar at the location closed. Lt. Evett is also concerned that the location is too close to the Greenville Rescue Mission site and that the emphasis will be placed on operating it as a bar/pool hall versus as a grocery store if the permit is issued. He noted that there are several liquor stores in close proximity to the location.

12.Ms. Ginny Stroud, the Community Development Administrator for the City of Greenville, testified about the master plans the City has to revitalize this area of the city. She noted that the City is trying to help improve the quality of life there for its citizens and to provide affordable housing.

She testified that there have been twenty-two new buyers of homes in the area already and that the City has been working with private developers to have more units constructed in the area to provide affordable housing to its residents. Further, she noted that the City is in the process of implementing the Reedy River Plan which would create a park close by. See Intervenor’s exhibit 2.

Ms. Stroud also testified that there are 1,071 residents in the general area, that approximately 74% of them rent their homes, their median income is $16, 021.00, 52.4% of them haven’t completed high school and 25 % of them are at or below poverty level.

13.Mr. Bryan Morris, the Executive Director for Construction Management for the Greenville County School District, testified that the school district has plans to construct an elementary school for eight hundred students across the street from the location. It will be a neighborhood school and will encompass approximately 12 acres. Its location is better identified as # 3 on Intervenor’s exhibit 1, and #2 on Intervenor’s exhibit 2. According to his testimony, demolition of some residences should begin the latter part of this year or early next year in preparation for the construction of the school. The district hopes to have it operational in 2007.

14.Ms. Mary Duckett, President of the Southernside Neighborhood Association, lives in the same community as the location. She is concerned about the effects of the sale and consumption of alcohol on the neighborhood. She opined that it would deteriorate a disenfranchised area.

15. Mr. Alvin Chiles, Director of “Within Reach,” a non-profit agency which was developed by a grant from the City of Greenville, testified that his agency works with residents in low to moderate income areas to help them improve their community. He testified that there are many transients in this community because there are a number of locations that provide free meals. He is afraid of the effect on these individuals if they could go to a place where they could purchase beer and/or wine and consume it on the premises.

16.Mr. William J. “Bill” Slocum is the Interim Director and Shelter Administrator of the Greenville Rescue Mission, which is located at the corner of W. Washington and Hudson Streets. Its rear portion is directly across Mayfield Street from the location. Mr. Slocum testified that the Mission provides meals and shelter for approximately 160 homeless men/clients each day, with an additional 75 clients in the gym each night in the winter months. Approximately one third (1/3) of the clients at the shelter participate in the Mission’s drug and alcohol recovery program. Also, during the summer, the Mission operates as a summer camp location for children in the City of Greenville.

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 prerogative 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 a hearing 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 all the statutory requirements for holding a beer and wine permit at the location. However, the evidence is clear that it would be detrimental to the community if he were allowed to sell beer and wine for both on and off-premise consumption at his location. The City of Greenville and other non-profit organizations are working to help with the revitalization of this neighborhood. They are working with private developers to have new homes built for many who live at or near poverty level. Furthermore, there is the great possibility of a public elementary school being constructed across the street from the location. Also, many men who have drug and alcohol problems receive treatment next door at the rescue mission. Having alcohol available for purchase in such close proximity to the Mission may have a detrimental impact on the Mission’s program.

The granting of a beer and wine permit would have a great adverse impact on the surrounding community and negate much of the ongoing efforts of the City and other non-profit organizations to help improve this community. The location is in a primarily residential area. There are liquor stores already licensed where alcohol can be purchased and there is a club adjoining the post office where alcohol can be purchased. This location could also create safety concerns for students in several years as to they go to and from school. Furthermore, there has been a history of problems at this location when it was permitted for the sale of beer and wine by previous business owners. There are both crime and safety concerns for residents who live close by and for the clients at the rescue mission.

For all these reasons, this Court finds and concludes that the request by Petitioner for the grant of a beer and wine permit for on and off-premise consumption at the location must be denied, as it would have an adverse impact on the community.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby

ORDERED that the application for an on and off-premise beer and wine permit for Thomp’s Planahead Grocery, Inc. located at 101 S. Hudson Street, Greenville, South Carolina is DENIED. AND IT IS SO ORDERED.

____________________________

Marvin F. Kittrell

Chief Administrative Law Judge

January 11, 2005

Columbia, South Carolina