South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Alston’s Convenience Store, d/b/a Alston’s vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Alston’s Convenience Store, d/b/a Alston’s
4105 N. Kings Hwy., Rembert, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0201-CC

APPEARANCES:
For the Petitioner: Kenneth R. Young, Jr., Esquire

For the Protestants: Sheriff Tommy R. Mims, Dr. J. Frank Baker, and Dr. Aura Spann, all Pro Se

For the Department: M. Anne Pearce, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-2-90 & 61-4-520 (Supp. 2002), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing. Alston’s Convenience Store is seeking an off-premise beer and wine permit. On April 30, 2003, Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protests of concerned citizens, the Department would have found this location to be suitable. This motion was not ruled upon until after the commencement of this hearing, at which time the Department was excused from participating in the hearing. A hearing was held in this matter on July 8, 2003, at the offices of the Administrative Law Judge Division 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 persuasion by the Petitioner and the Protestants, I make the following Findings of Fact by a preponderance of evidence:

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

2.Alston’s Convenience Store seeks an off-premise beer and wine permit for its location at 4105 N. Kings Highway, City of Rembert, Sumter County, South Carolina. This location has not been previously licensed. However, a store located across the street from this location was permitted in the past. Footnote Lenora Alston, the owner of the location, testified that this location is a neighborhood convenience store that currently offers light groceries, snacks, household items and lottery tickets. There have not been any problems with law enforcement or area residents since she has been operating. This location also does not and will not sell gasoline. Ms. Alston further testified that this convenience store will not have any signs advertising beer and wine visible from the outside of the store and that her stock of beer and wine will not be situated within the store so as to be visible from the outside. She also testified that loitering will not be allowed outside of her the location.

3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2002) concerning the residency and age of the Petitioner are properly established. Furthermore, Ms. Alston has not had a permit or license revoked within the last two years and public notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4.Ms. Alston has no criminal record and is of sufficient moral character to receive a beer and wine permit. The concerns raised at the hearing by the Protestants do not extend to Ms. Alston’s character but rather concern the suitability of the location.

5.The Protestants object to the issuance of a permit for this location because of the proximity of the location to an elementary school (approximately 232 feet from door to door), a church (approximately 4/10 of a mile), and a community center (approximately 2/10 of a mile). Sheriff Mims is also concerned about the lack of law enforcement available to patrol the area due to recent budgetary constraints.

The elementary school teaches grades pre-kindergarten to the fifth grade and has about 300 students. The school also provides after school sports programs and week-end tutoring. Some of the children walk to and from the school with the aid of a crossing guard and pass directly in front of Alston’s Convenience Store. However, the testimony established that only a small percentage walk to and/or from the school. Furthermore, the children are well watched and are not allowed to leave school grounds during school hours unattended.

As to the community center, the testimony presented revealed that older children do use the center and nearby basketball court during the summer months. These children also buy items from the store such as snacks and sports drinks. However, no evidence was presented that these children would be adversely impacted or harmed by the location if it were permitted to sell beer and wine without alcohol advertisements visible from the outside of the location and with a restriction disallowing loitering.

Both the arguments of the Sheriff and the other Protestants appear to be based on a sincere concern for their community. Furthermore, this general area of Rembert does appear to be evolving into one that is more civically aware of how to come together as a community for its betterment. Moreover, in light of the proximity of the proposed location to the school and community center, operation in any other manner than described above presents a potential change to the integrity of the neighborhood and a potential adverse impact on the community, especially with the restrictions set forth below. Nevertheless, the evidence did not establish that the granting of this permit for the operation of the location as the Petitioner proposes will augment the criminal activity in this area or have an overall adverse impact on the community.

Therefore, I find that the proposed location is suitable for an off-premise beer and wine permit with the restrictions set forth below. These restrictions are necessary to protect the current integrity of the community. Furthermore, the determination of the suitability of the proposed location is based upon the restrictions below and the current nature of the Petitioner’s business. Consequently, if the Petitioner’s business is not operated as described in this Decision or the Petitioner fails to comply with the restrictions, the proposed location would need to be reevaluated to determine if it is suitable and the Department could properly bring an action to revoke the Petitioner’s permit.


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. 2002) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2.S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3.S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for the issuance of a beer and wine permit. Furthermore, Section 61-4-520(7) states:

The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.

4.Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981).

5.As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984).

6.The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations 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).

7.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).

8. 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 Judge, 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. 7-88 (1976), authorizing the imposition of restrictions on permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

9.The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit at the proposed location with the following restrictions set forth below.


ORDER

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

ORDERED that the off-premise beer and wine permit application of Alston’s Convenience Store be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to the restrictions that are set forth below:

1.The Petitioner agrees not to place any signs or advertisements for beer or wine so that they are visible from the outside of the store. The Petitioner also agrees not to allow her beer and wine inventory to be visible from the outside of the location.

2. The Petitioner shall prohibit loitering and the consumption of beer and wine in the parking lot area of the proposed location and shall ensure that no public disturbance is created.


IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an off-premise beer and wine permit upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.



_________________________________

Ralph King Anderson, III

Administrative Law Judge


July 10, 2003

Columbia, South Carolina


 

 

 

 

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