ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (ALJD or Division)
pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2002) for a contested case hearing. The Petitioner, Mwendwa Munywoki, seeks
an off-premises beer and wine permit for this location at 6101 Monticello Road, Columbia, South
Carolina. A hearing was held before me on September 17, 2003, at the offices of the 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, the
Protestants, and the Respondent, I make the following Findings of Fact by a preponderance of the
evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Protestants, and the Respondent.
2.The Petitioner seeks an off-premises beer and wine permit for this location situated
at 6101 Monticello Road in Richland County, South Carolina. This location has previously been
permitted for the sale of beer and wine on-premises from 1986 until 2001. However, the
Petitioner is now seeking an off-premises permit for this location. The Petitioner intends to
operate the location as a neighborhood convenience store selling bread, milk and other similar
items in addition to the sale of beer and wine.
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, the
Petitioner has not had a permit or license revoked within the past two years.
Notice of the
application was lawfully posted both at the location and in a newspaper of general circulation.
4.The Petitioner has no criminal record and is of sufficient moral character to receive
a beer and wine permit. Additionally, there was no evidence offered to establish that the
Petitioner’s business as it will be run will not have a reputation for peace and good order.
5.The closest church is approximately two-tenths (2/10) of a mile from this location.
However, a church existed in that building when this location was previously permitted for on-premises consumption of beer and wine. Also, an old public school has been converted into a
community center approximately 1.2 miles from the location. But that too was built when the
location was previously permitted. Therefore, the proposed location is not unreasonably close to
any church, school or playground.
6.The Petitioner stated that the hours of operation at this location will be seven days
a week from 7:00 a.m. until Midnight. The location will also have a licensed security guard at the
location after 5:00 p.m. until closing each day.
7.Several other establishments in the area operate with off-premises beer and wine
permits, including Andy’s, located directly across Monticello Road. Also, a retail liquor store is
situated approximately four hundred (400) meters from the proposed location.
8.The Protestants contend that the Petitioner’s location is not suitable because the
Mini Mart that was previously operated at this location with an on-premises beer and wine permit
was poorly maintained. The Protestants testified that the property surrounding the location was
strewed with trash, that loitering with alcohol consumption took place around the location, and
outdoor urination and some panhandling also occurred. However, the stipulations set forth below
by the Petitioner when incorporated into his permit will allay those problems.
Another concern of the Protestants is traffic safety. This location is situated at the
intersection of Monticello Road and Winyah Road in Columbia, South Carolina. A portion of
Winyah Road which runs from Monticello Road operates as one entrance to the Protestants’
residential neighborhood. Currently, the location has between eight to ten marked parking spaces
in the parking lot but it is unpaved. Patrons of the location have in the past parked their vehicles
on Winyah Road at the entrance to the location’s parking lot. Therefore, this location could
present a traffic concern. However, the stipulations set forth below will also rectify that problem.
The Protestants also contend that the Petitioner’s location is not suitable because it fosters
potential criminal activity. In particular, the Petitioners testified that they have observed what
appeared to be drugs exchanging hands or being utilized on the premises. However, this location
as permitted in the past has not had any violations.
9.The Protestants’ arguments appear to be based on a sincere concern for their
community. However, the evidence did not establish that the proposed location, as approved, will
be a source of any law enforcement or safety problems in the area. Nor is there sufficient
evidence to find that the well-being of the surrounding vicinity would be jeopardized by the
issuance of the permit with the restrictions and/or stipulations set forth below. In fact, the
Protestants agreed that this unsightly abandoned building which is at the entrance to their
subdivision is currently an eyesore and that aesthetic improvements to the location would enhance
their community.
Nevertheless, the evidence did establish the legitimate potential for loitering at the
proposed location and that the previous on-premises permit degraded the neighborhood.
Therefore, I find that the proposed location is suitable for an off-premises beer and wine permit
solely with the stipulations set forth below. Adherence to those stipulations is necessary to
protect the current integrity of the community. Furthermore, the determination of the suitability
of the proposed location is based upon the stipulations below and the current nature of the
Petitioner’s business. Consequently, if the Petitioner’s business is not operated as a convenience
store selling beer or wine to be consumed off-premises or the Petitioner fails to comply with his
own stipulations, suitability of the location would be questionable and the proposed location
would need to be reevaluated to determine if it should continue to be permitted.
STIPULATIONS
The Petitioner specified at the hearing that he would abide by the following stipulations if
granted a permit for the sale of beer and wine off-premises:
1.Parking: The Petitioner will pave the parking of the location. The
Petitioner will also limit all parking to the parking lot and shall not
permit parking along the shoulder of Monticello Road or Winyah
Road. The Petitioner will maintain the “No Parking” sign and
existing barriers on Winyah Road and will call the authorities if
someone illegally parks on that shoulder.
2.Loitering: The Petitioner will not permit loitering in the parking
lot or around the location. This also includes preventing the
consumption of alcohol on the grounds of the location.
3.Security Guard: The Petitioner will hire a licensed security guard
who will work at the premises from 5:00 p.m. to closing each day
the location is open.
4.Lighting: The Petitioner will maintain proper lighting around all
four sides of this location.
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 (1986 & Supp. 2002) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedure
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 an off-premises beer and wine permit.
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 Petitioner and the proposed business location for a license or permit
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.Permits and licenses issued by this state for the sale of 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 to 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 Commission, if accepted by the Commission, will be
incorporated into the basic requirements for the enjoyment and privilege or
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.
8.Without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. Furthermore, the Protestants
did not make an adequate showing that this location is any less suitable for the sale of beer and
wine off-premises than it was as previously permitted for on-premises retail. See Taylor v. Lewis,
198 S.E.2d 801 (1973). 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). But for the Protestants’ objections to
the suitability of the location, the Department of Revenue would have issued the permit to the
Petitioner.
9.The Petitioner meets the statutory requirements for holding a beer and wine permit
at the proposed location with the above stipulations and the following restrictions.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an off-premises beer and wine permit be granted upon
the Petitioner signing a written Agreement with the South Carolina Department of Revenue to
adhere strictly to the above stipulations.
IT IS FURTHER ORDERED that a violation of any of the above stipulations 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 a beer and wine
permit upon payment of the required costs by the Petitioner.
AND IT IS SO ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
October 8, 2003
Columbia, South Carolina |