South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
BJ&W, Inc., d/b/a Mid town Grocery vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
BJ&W, Inc., d/b/a Mid town Grocery
229 St. Phillip St., Charleston, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0094-CC

APPEARANCES:
Kenneth E. Allen, Esquire, for the Petitioner

Dana R. Krajack, Esquire, for the Respondent

Protestants: Daniel Atwill, Kelly Dougherty, Chris Maloney, Kirsty Sutton, Ian Tomlinson, all pro se
 

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


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