SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and S.C. Code Ann. § 1-23-310 et seq. (Rev. 1986 and Supp. 1994) upon the application of Roshan Vallimohamed for an on-premise beer and wine permit for a convenience store located on Leesburg Road in Columbia, South Carolina. After notice to the parties and protestors, a hearing was conducted on November 29, 1995. The primary issue considered was the suitability of the proposed business location. Based upon the evidence presented, the application for an on-premise beer and wine permit is denied.

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases and taking into account the credibility of the witnesses:

1. The applicant, Roshan Vallimohamed, is over the age of twenty one and is a resident of South Carolina and a legal resident of the United States.

2. She currently holds an off-premise beer and wine permit for this location at 1704 Leesburg Road, Columbia, South Carolina. She also holds another beer and wine permit at a convenience store that allows the sale and consumption of beer and wine both on and off premises.

3. The only violation against her permit occurred in 1990 for the sale of beer to a minor.

4. The applicant does not have any criminal convictions and is a person of good moral character.

5. The applicant's son operates the business. He does not have any criminal convictions and is a person of good moral character.

6. The location is a gas station and convenience store located on Leesburg Road. It is currently licensed for the sale of beer and wine to go. The applicant expresses a desire to sell beer for on-premises consumption based upon the request of customers who patronize the store to play the video poker machines. Leesburg Road is a commercial thoroughfare with residences located just behind the businesses.

7. The store operates seven days a week from 6:00 a.m. to midnight. There are five video poker machines located in a separate small 20 foot by 20 foot space inside the store. The store also sells hot dogs and other snack foods. No complaints from the community have been voiced based upon the operation of this store.

8. There are no schools or playgrounds in the vicinity. A church is located approximately 560 feet from the location in the next block. A day care center is located adjacent to the business separated by a fence. According to the investigative report prepared for the Department, the day care is located approximately 200 feet from the proposed location. Its hours of operation are Monday through Friday, 6:30 a.m. to 6:30 p.m. Children aged from infancy to twelve years are served by the facility. The owner of the day care did not oppose or support the application.

9. Another gas station convenience mart is located across the street from the proposed location. It sells beer and wine for off-premises consumption. One block away next to the hair stylist shop is a building in which there is a video store which rents videos and a Chinese food restaurant that sells beer and wine for on-premise consumption. The owner of the building also lives in the building.

10. Residents in the area protest the application for on-premises consumption based upon the number of calls to the police department, exposure of youth to drinking and gambling; and traffic congestion on Leesburg Road. The police responded to 22 calls for this location of which seven resulted in written incident reports. None of the incident reports written by police involved the sale or consumption of beer or wine. At least one resident was burglarized several times by persons who used the convenience store as a place to observe the activity at his home. The residents fear that the location will no longer be a gas and convenience store but a place to play video poker and drink beer that may cause loitering. There have been motor vehicle accidents near the location in which consumption of beverages containing alcohol may have been a contributing factor.

11. Notice of the application was posted at the location for fifteen days and published in The State newspaper for three consecutive weeks.

Based upon the Findings of Fact, I conclude, as a matter of law:

1. The Administrative Law Judge is vested with the powers, duties and responsibilities exercised by the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23 of Title 1. 21-S.C. Code Ann. § 61-1-55 (Supp. 1994).

2. S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the statutory requirements for the issuance of beer and wine permits. It provides in part that the location must be a proper one.

3. 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).

4. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location 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).

5. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

6. Proximity of a location to a church, school, playground, or residence is a proper ground, by itself, on which the location may be found unsuitable for a permit to sell beer and wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653 (1991).

The proposed location is suitable and proper for the sale of beer and wine to go. The business activity as a gas station and convenience store is conducive to the off-premises sale. The sale of beer and wine for on-premises consumption changes the character and nature of the business from one in which there is a flow of activity for a limited period for a specific purpose (i.e. to buy gasoline, purchase cigarettes, milk or other items as a convenience) to one which encourages people to stay and socialize. This change would adversely impact the neighborhood, the residents and affect the day care.

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

ORDERED, that the application of Roshan Vallimohamed for an on-premise beer and wine permit for 1704 Leesburg Road in Columbia is DENIED.

AND IT IS SO ORDERED.

_______________________________

ALISON RENEE LEE

Administrative Law Judge

January ____, 1996

Columbia, South Carolina.