ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann.
§61-4-520 et seq. (Supp. 2003) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2003) for
a contested case hearing. The Petitioner, BJ & W, Inc., d/b/a Mid Town Grocery, is a corner store
located at 229 St. Phillip Street in Charleston. Gerald Williams is the owner of BJ & W, Inc., d/b/a
Mid Town Grocery (Mid Town or Applicant). He seeks the renewal of an on-premise beer and wine
permit for the establishment. The Department of Revenue (Department) filed a Motion to be Excused
setting forth that but for the protests received, this permit would have been issued. This motion,
however, was denied by my Order dated April 14, 2004. A hearing on the merits of this case was
held on June 16, 2004, at the Court in Columbia, South Carolina. Notice of the time, date, place,
and subject matter of the hearing was provided to all parties at least thirty (30) days prior to the
hearing date. The parties were present as indicated above.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in this
matter and closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks the renewal of an on-premises beer and wine permit for the
establishment known as BJ & W, Inc., d/b/a Mid Town Grocery, located at 229 St. Phillip Street,
Charleston, South Carolina.
2.The concerns of the Protestants listed above were timely received by the Department.
3. BJ & W, Inc., d/b/a Mid Town Grocery is a valid corporation registered with the
South Carolina Secretary of State’s office. Gerald Williams, a principal of BJ & W, Inc., d/b/a Mid
Town Grocery, is a legal resident of South Carolina, has no criminal record and is of sufficient moral
character to receive a beer and wine permit. The sole issue in this case is the suitability of the
location.
4. The location has been permitted for the on-premises sale of beer and wine for fifteen
years. Petitioner runs a “corner store” where people from the neighborhood gather to socialize. The
establishment opens at 2:00 PM Monday through Thursday, and closes at 10:00 PM. On Fridays and
Saturdays the store is open from 11:00 AM to 11:30 PM.
5.There are several licensed locations which sell alcohol in the immediate area
surrounding the proposed location.
6. The Protestants all live or own property near the proposed location. They presented
testimony regarding public urination, trash in their yards, parking problems, loitering and public
intoxication which they attributed to the patrons of Mid Town Grocery. The primary concerns of
the Protestants are the safety of the residents and their quality of life in their homes. Although the
Protestants were very steadfast in their opposition to the proposed location, and they presented
specific reasons why this particular location should not be licensed, I find that the restrictions on the
license which the applicant has agreed to self-impose, along with those imposed by this court and
made a part of the renewal, address most of the Protestants’ concerns. I specifically find that
although the Protestants presented police reports detailing the law enforcement responses to
problems in the area, none of the reports specifically related to Mid Town Grocery. Several arrests
were made at the intersection of St. Phillip Street and Bogard Street where Mid Town is located, but
many of these arrests were after Mid Town was closed, and were not directly attributed to Mid
Town.
6.I specifically find that this corner store serves a purpose in its location, now and
historically. The patrons of the store are primarily African-Americans who have traditionally
gathered at this location for fellowship. The several patrons who testified at the hearing are all either
gainfully employed, or retired management level employees. Mr. Williams, the primary applicant,
testified that most of the patrons are older gentlemen who do not stay out late. In addition, there
have been no violations of his alcohol permit at Mid Town Grocery. His testimony indicated that
many of the problems identified by the Protestants could not be directly attributed to Mid Town. He
testified that he does not permit loitering, does not allow drugs into his store, and does not have live
music. Although the Protestants felt that Mr. Williams could serve the community better by
emphasizing the “store” aspect of his corner store, by stocking eggs, milk, paper products, etc. for
sale, and by enforcing his “no loitering” policy, I find that the store serves a useful purpose for its
primary clientele.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Judge Court has jurisdiction in this
matter pursuant to S.C. Code Ann. §61-2-260 (Supp. 2003).
2. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).
3. The applicant has complied with all the provisions of S.C. Code Ann. §61-4-520
regarding application conditions. The only remaining issue is the suitability of the location pursuant
to S.C. Code Ann. § 61-4-520(6) and (7).
4.Licenses and permits issued by the State for the sale of beer, wine, and liquor are
not rights or property, but are rather privileges granted in the exercise of the police power of the State
to be used and enjoyed only so long as the restrictions and conditions governing them are complied
with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to
revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See
Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
5.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).
6.As the trier of fact, an administrative law judge is authorized to determine the fitness
or suitability of the proposed business location of an applicant for a beer and wine permit using
broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s
responsibility to judge the demeanor and credibility of witnesses and determine the relevance and
weight of any testimony and evidence offered.
7.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). 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 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). Any evidence adverse to the
location may be considered. The proximity of a location to a church, school or residences is a proper
ground by itself upon which the location may be found to be unsuitable and a license denied. Byers
v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider
whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n,
282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
8.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, 258 S.C. 504, 189 S.E.2d 301
(1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
9.The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer and
wine, did not object to the renewal of the permit in this case. The City of Charleston did not file a
valid protest to this location, despite the Protestants’ allegations of law enforcement problems in the
area. I find that this location is suitable for the on-premises sale of beer and wine with the
restrictions imposed below.
10.In addition, S.C. Code Ann. Regs. 7-200.1(I) (effective June 27, 2003) authorizing
the imposition of restrictions on licenses, provides:
Any written stipulation and/or agreement which is voluntarily entered
into by an applicant for a permit or license between the applicant and
the Department, if accepted by the Department, will be incorporated
into the basic requirements for the enjoyment and privilege of
obtaining and retaining the permit or license and shall have the same
effect as any and all laws and any and all other regulations pertaining
to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall
constitute sufficient grounds to revoke said license.
11. I find that this location shall be permitted with the following restrictions on the
permit as the applicant agreed at the hearing:
A.) That beer and/or wine shall be consumed only inside the location
of BJ & W, Inc., d/b/a Mid Town Grocery;
B.) The corner store known as BJ & W, Inc., d/b/a Mid Town
Grocery shall have the following operating hours:
10:00 AM to 10:00 PM Monday
2:00 PM to 10:00 PM Tuesday through Thursday
2:00 PM to 12:00 AM Friday, and
9:00 AM to 11:00 PM Saturday
In addition, this court imposes the following restrictions on the permit:
C.) There shall be no loitering around BJ & W, Inc., d/b/a Mid
Town Grocery, 229 St. Phillip Street, during the above listed
operational hours. This restriction is to be enforced by the
management and employees of Mid Town Grocery. Specifically, the
Petitioner or its employees must prohibit loitering and the
consumption of beer or wine sold there in the area outside the
location. The Petitioner must instruct any loiterers to leave the
premises or come inside the location and must promptly notify law
enforcement if the loiterer fails to comply with the request.
D.) The Petitioner or his employees must pick up litter and debris on
the grounds of the location and its adjacent areas daily before closing.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for the renewal of its on-premises beer and wine
permit is GRANTED upon payment of any required fees and costs by the Petitioner to the
Department.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premises beer
and wine permit to the Petitioner with the following Restrictions:
1.) That beer and/or wine shall be consumed only inside the location of BJ
& W, Inc., d/b/a Mid Town Grocery;
2.) The corner store known as BJ & W, Inc., d/b/a Mid Town
Grocery shall have the following operating hours:
10:00 AM to 10:00 PM Monday
2:00 PM to 10:00 PM Tuesday through Thursday
2:00 PM to 12:00 AM Friday, and
9:00 AM to 11:00 PM Saturday
3.) There shall be no loitering around BJ & W, Inc., d/b/a Mid Town
Grocery, 229 St. Phillip Street, during the above listed operational
hours. This restriction is to be enforced by the management and
employees of Mid Town Grocery. Specifically, the Petitioner or its
employees must prohibit loitering and the consumption of beer or
wine sold at this location in the areas outside the location. The
Petitioner must instruct any loiterers to leave the premises or come
inside the location and must promptly notify law enforcement if the
loiterer fails to comply with the request.
4.) The Petitioner or his employees must pick up litter and debris on
the grounds of the location and its adjacent areas daily before closing.
AND IT IS SO ORDERED.
_______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 14, 2004
Columbia, South Carolina |