ORDERS:
FINAL ORDER AND DECISION
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, A&T Kwik Mart, seeks an off-premise beer and wine permit for its location
situated at 2370 Hwy. 301 North, Dillon, South Carolina. Respondent South Carolina Department
of Revenue (Department) filed a Motion to be Excused setting forth that but for the protest of the
Protestant, this permit would have been issued. That Motion was granted by my Order dated August
3, 2004. A hearing was held before me on September 14, 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 A&T Kwik Mart,
located at 2370 Hwy. 301 North, Dillon, South Carolina.
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.A&T Kwik Mart is a convenience store located on Highway 301 North. The site is
located in Dillon County outside the city limits of Dillon. It is in a commercial area situated on a
corner of a four lane highway. The location itself was run as a nightclub in the early 1960s and has
been operated as an unpermitted convenience store since about 1968. It is from the previous store’s
owner/operator that the Petitioner is leasing this property. The nearest permitted store is
approximately 1/3 of a mile from this proposed location. The property directly adjacent to the
location is owned by Northside Holiness Church. However, this property and building are apparently
not currently used for worship services and no one from that location protested this permit.
Alexander Bember, the husband of the proposed permittee, is a former state trooper who is
well know in the area. He helps to manage the location and does not allow loitering or alcohol
consumption at or around the store. In fact, since their convenience store has been in operation in
February 2004, they have not experienced any problems at the store. Also, there is adequate lighting
around the location and under the “gas canopy” to ensure for the safety of patrons. Finally, Mr.
Bember set forth that no signs advertising alcohol or alcohol sales will be posted so as to be visible
from the front of the church.
5.The issuance of the permit is contested by James Stevens, pastor of Hamer Church
of God, located across the street from the proposed location. The church’s front door faces the side
of the convenience store. The Protestant’s church is approximately 380 feet from the proposed
location. Pastor Stevens’ main objection to the issuance of this permit is the possible interaction the
members of his congregation may have with individuals purchasing alcohol from the location.
He
set forth that the church’s property is utilized by its members during the weekdays as follows:
•Tuesday nights teens gather in the fellowship building located behind the
church;
•Wednesday nights the church holds regular services;
•Thursday nights, the church’s choir (mostly women) holds practice; and
•On Friday nights the church hosts its “12 and under” children twice a month.
Finally, Pastor Stevens set forth that this is a dangerous intersection where frequent accidents have
occurred and that local citizens have been trying to have a traffic light installed at this intersection.
However, no direct evidence was introduced to substantiate that this intersection is particularly more
dangerous than any other.
6.Pastor Stevens’ arguments appear to be based on a sincere concern for his church
members and their surrounding community. However, in order to deny this permit, direct evidence
of an adverse impact on the community is necessary. 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 an off-premise permit for this location will have an overall adverse impact on
the community. On the other hand, the proposed location seems to be a commercially thriving area.
There also was no evidence of an existing criminal problem that could be exacerbated by granting
the permit. However, if a drastic change occurs after the Petitioner receives this permit, the proposed
location May 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, 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 also proper for this Court to consider any
evidence that demonstrates the 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). Additionally, it is
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, supra.; Taylor v. Lewis, supra.
“A liquor license or permit may properly be refused on the ground that the location of the
establishment would adversely affect the public interest, that the nature of the neighborhood and of
the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants,
or that the manner of conducting the establishment would not be conducive to the general welfare
of the community.” 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). Nevertheless, 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.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 payment of the proper fees and costs.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
September 16, 2004
Columbia, South Carolina |
