SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. The Petitioner, Tiger Stop South, LLC, d/b/a Blue Water #12, seeks an off-premise beer and wine permit for its location to be constructed at 2514 Clements Ferry Road, Wando, South Carolina. Respondent South Carolina Department of Revenue (Department) filed a Motion to be Excused setting forth that but for the protests of the Protestants, this permit would have been issued. However, because this location has not yet been constructed, that motion was denied. A hearing was held before me on June 24, 2004, at the offices of the Administrative Law Court (ALC or Court) 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 proof upon the parties and the Protestant, 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 Protestant, and the Department.

2.The Petitioner seeks an off-premise beer and wine permit for Tiger Stop South, LLC, d/b/a Blue Water #12, to be constructed at 2514 Clements Ferry Road, Wando, South Carolina. The proposed location is in Berkeley County.

3.The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2003) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4.The proposed business is a convenience store that has yet to be constructed at 2514 Clements Ferry Road. The site is located in rural Berkeley County in an area that is both commercial and residential. This area was previously more rural until Interstate 526 was constructed and nearby Daniel Island developed. Since that development, the area has been steadily growing more commercial. Clements Ferry Road is a two-lane thoroughfare with a turning median. Aside from some local businesses whose employees may frequent the proposed location on foot, this area does not yield a lot of pedestrian foot traffic. Finally, a night club and another convenience store licensed for the sale of beer and wine off-premises are approximately 1 ½ miles from this proposed location.

Although the proposed convenience store has not yet been built, James Poe will ultimately manage the proposed store. Mr. Poe, who manages several other convenience stores for Tiger Stop South, operates those stores with a concerted effort to insure that the locations are well perceived by its customers, venders and the community as a whole. His locations do not sell pornographic materials and are involved financially and physically with its surrounding society. In particular, an Exxon station situated in the Town of Mt. Pleasant across from Sea Coast Community Church has regularly donated ice, products and parking to that church. Mr. Poe has also allowed fund-raisers to be held on convenience store properties, such as car washes.

Additionally, Tiger Stop South’s other locations have enjoyed good relationships with local law enforcement. Training sessions are held to prevent the sale of beer or wine to minors and SLED agents have been employed in the past to help with this training. Moreover, it is the company’s policy to fire its employees for underage sales, even if law enforcement is not ultimately involved in the transaction. Mr. Poe testified he will promote the same relationship with law enforcement and store policies at this proposed location.

If approved, this location will be built with a split-face cement block configuration so that employees can observe customers outside and customers will be put at ease as to the activities inside the store. The proposed location will be well-lit to help prevent outside loitering. The hours of operation will be from 6:00 a.m. to midnight, seven days a week, with Berkeley County not permitting Sunday beer and wine sales as of the date of this hearing.

5.The issuance of the permit is contested by Robert Porcher, pastor of Holy Rock Temple of God Holiness Church, located directly across from the proposed location at 2515 Clements Ferry Road. The Protestant’s church is approximately 350 feet from the proposed location’s property line. Furthermore, many of the church’s members reside around the church. Mr. Porcher’s main objection to the issuance of this permit is that his congregation objects to alcohol, especially across the road from their church. He contends that individuals may purchase alcohol and drive away from the location while drinking. He also asserts that problems may be created for residents who live in the vicinity of the location by those traveling into the area to purchase alcohol. However, the Protestant did concede that this area does not contain a lot of pedestrian traffic so that loitering and foot traffic will be probably kept at a minimum. Finally, Mr. Porcher does understand that this location will be permitted for the purchase of beer and wine off-premises only and that consumption at the location will be illegal.

6.Mr. Porcher’s arguments appear to be based on a sincere concern for his church members and their surrounding community. However, though the evidence offered raises “potential” concerns that this business may change the integrity of the vicinity, the evidence did not establish that the granting of the permit for this location will have an overall adverse impact on the community.

In order to deny this permit, direct evidence of an adverse impact on the community is necessary. On the other hand, the proposed location seems to be a commercially thriving area. Furthermore, the Petitioner has shown that it has enjoyed marked success in running convenience stores in the past. In fact, the nature of the Petitioner’s business may add to the overall attractiveness of this area to promote other successful growth. However, if a drastic change occurs after the Petitioner receives this permit, the proposed location would no longer be suitable and the community and/or the Department could properly bring an action to prohibit the renewal of the Petitioner’s permit. Therefore, I find that the Petitioner’s proposed location is suitable for an off-premise beer and wine 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 (1986 & Supp. 2003) 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. 2003) 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. 2003) set forth the requirements for the issuance of a beer and wine permit.

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). As the trier of fact, the Administrative Law Judge is authorized to determine 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). The determination of suitability of location is not necessarily a function solely of geography. It involves a 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). Additionally, 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.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 Court, 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).

5.The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit at the proposed location.

ORDER

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

ORDERED that the Department resume processing the Petitioner's application and issue an off-premises beer and wine permit to the Petitioner upon approved completion of the construction of the location and payment of the proper fees and costs.
AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

July 8, 2004

Columbia, South Carolina