ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before this Court pursuant to S.C. Code Ann. §§ 61-2-260,
1-23-600(B), and 1-23-310 through -400 (2005 & Supp. 2006) for a contested
case hearing. Petitioner Cynthia J. Williams seeks an off-premises beer and
wine permit for her convenience store, D’s Drive-Thru, located at 140 Smith
Street in Mullins, South Carolina. Respondent South Carolina Department of
Revenue found that Petitioner met the statutory requirements for the issuance
of an off-premises beer and wine permit, but denied Petitioner’s application
because of protests filed by nearby residents regarding the suitability of the
proposed location.
After
timely notice to the parties and the protestants, a hearing of this case was
held on November 20, 2007, at the South Carolina Administrative Law Court in
Columbia, South Carolina. Based upon the applicable law and upon the evidence
presented regarding the suitability of the proposed location, I find that
Petitioner’s application for a beer and wine permit should be granted.
FINDINGS
OF FACT
Having
carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of
the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On
April 26, 2007, Petitioner submitted an application to the Department for an
off-premises beer and wine permit for her convenience store, D’s Drive-Thru,
located at 140 Smith Street in Mullins, South Carolina. This application and
the Department’s file on the application are hereby incorporated into the
record by reference.
2. Notice
of Petitioner’s application was published once a week for three consecutive
weeks in the Marion Star and Mullins Enterprise, a newspaper published
and circulated in Marion, South Carolina, and proper notice of the application
was posted at the proposed location for fifteen days.
3. Petitioner
is the sole owner of D’s Drive-Thru, a sole proprietorship.
4. Petitioner
is over twenty-one years of age and does not have any delinquent state taxes.
Further, the South Carolina Law Enforcement Division (SLED) conducted a
criminal background investigation of Petitioner, which did not reveal any
criminal arrests or convictions, and the record does not indicate that
Petitioner has engaged in any acts or conduct implying the absence of good
moral character.
5. Petitioner’s
convenience store is located near the corner of Smith Street and Wine Street in
Mullins, South Carolina. There are two residences within close proximity of
the store. However, the area surrounding the convenience store is zoned for
commercial use. Further, there are several other businesses within the general
vicinity of the store, including the Rose Restaurant, which is permitted for
the sale of beer and wine, and Hilda’s Lounge, which is also permitted for the
sale of beer and wine and shares a wall with one of the residences.
6. While
there are no schools or playgrounds within close proximity of the location,
there is a church, Christ International Organization Perfect Peace Ministries,
located on Wine Street that is 354 feet from the location by vehicle travel and
121 feet from the location by pedestrian travel. Further, First Baptist Church
is located on a street adjacent to Wine Street and is 684 feet from the
location by vehicle travel.
7. The
building housing the store was apparently constructed for use as a garage. Petitioner
began leasing the building on March 9, 2007 and began operating it as a
convenience store in October, 2007. The doors on each end of the building are
large enough for a vehicle to drive through. Petitioner has invited customers
to drive their vehicles through the store so that they may purchase merchandise
without exiting their vehicles. However, she intends to store beer and wine in
a room closed off from the main area of the store so that customers will have
to exit their vehicles in order to retrieve beer or wine for purchase.
8. During
the month that the store has been in business, Petitioner has operated the
location as a normal, neighborhood convenience store, open six days a week
between eight o’clock in the morning and nine o’clock in the evening.
Petitioner intends to expand the hours of operation so that the store will be
open between seven o’clock in the morning and nine o’clock in the evening on
weekdays and later in the evening on weekends.
9. Protestants
Richard B. Little and Cindy J. Little, who own property in the surrounding
community, opposed Petitioner’s application. They described problems that have
occurred near the location, including problems with public drinking, public
urination and littering. Mr. and Mrs. Little expressed concern over the
possibility that the sale of beer and wine at the location will exacerbate
existing problems near the location and will undermine community efforts to curtail
the existing problems and improve the neighborhood.
CONCLUSIONS
OF LAW
Based
upon the foregoing Findings of Fact, I conclude the following as a matter of
law:
1. Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2006), S.C. Code Ann. §
1-23-600(B) (Supp. 2006), and S.C. Code Ann. §§ 1-23-310 through -400 (2005 and
Supp. 2006).
2. ALC
Rule 2(H) defines a party as each person or agency named or admitted as a party
or properly seeking and entitled to be admitted as a party, including a license
or permit applicant.
3. “[T]he
issuance or granting of a license to sell beer or alcoholic beverages rests in
the sound discretion of the body or official to whom the duty of issuing it is
committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C.
246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C.
Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
4. S.C.
Code Ann. § 61-4-520 (Supp. 2006) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the
proposed location be a proper and suitable one. See id. §
61-4-520(5)-(6).
5. Although
“proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness and suitability of a particular location
for the requested permit. See Fast Stops, Inc. v. Ingram, 276
S.C. 593, 281 S.E.2d 118 (1981).
6. While
there is no required minimum distance between an establishment permitted for
the sale of beer and wine and a residence, church, school or playground, it is
appropriate to consider the proposed location’s proximity to residences, churches,
schools and playgrounds. S.C. Code Ann. § 61-4-520(6) (Supp. 2006) (stating
that the department may consider, among other factors, as indications of
unsuitable location, the proximity to residences, schools, playgrounds and
churches).
7. However,
the determination of suitability of location is not necessarily a function
solely of geography. Rather, 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); Schudel v. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981). In fact, without sufficient
evidence of an adverse impact on the community, a permit application must be granted
if all other statutory criteria are satisfied. The fact that the issuance of a
permit or license is protested is not a sufficient reason, by itself, to deny
the application. See 48 C.J.S. Intoxicating Liquors § 119
(1981). Protests founded upon opinions, generalities and conclusions not
supported by the evidence or upon purely speculative concerns about what might
occur at the licensed premises do not provide an adequate basis for the denial
of a license for a particular location. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith
v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Southland Corp. v. City
of Westminster City Council, 746 P.2d 1353, 1356 (Colo. Ct. App. 1987).
8. S.C.
Code Ann. § 61-2-170 (Supp. 2006) states that the Department may not generate
license fees to be deposited in the general fund of the State through the
issuance of licenses or permits for on-premises or off-premises consumption
which authorize alcoholic liquors, beer or wine to be sold on a drive-through
or curb service basis. Petitioner is aware of this prohibition and intends to
store beer and wine in a room closed off from the main area of her store so
that customers will have to exit their vehicles in order to retrieve beer or
wine for purchase.
9. This
Court is respectful of the protestants’ opposition to the requested permit and
their concerns regarding the suitability of the proposed location for
Petitioner’s store. However, in making a decision in this matter, this Court
is constrained by the record before it and the applicable statutory and case
law. Here, Petitioner meets all of the statutory criteria enacted by the South
Carolina General Assembly for the issuance of a beer and wine permit, and there
has not been a sufficient evidentiary showing that the issuance of the requested
permit would exacerbate existing problems near the location, undermine
community efforts to curtail those problems or otherwise adversely impact the
surrounding community. Therefore, such a conclusion
would be speculative. Further, the area is commercial in nature and there are
two businesses within close proximity to the location that are permitted for
the sale of beer and wine. Considering the foregoing factors, I conclude that the
location meets the suitability requirement of S.C. Code Ann. § 61-4-520(5)
(Supp. 2006).
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that the Department shall GRANT Petitioner’s
application for an off-premises beer and wine permit for the premises located
at 140 Smith Street in Mullins, South Carolina.
AND
IT IS SO ORDERED.
______________________________
December 3, 2007 JOHN
D. GEATHERS
Columbia, South Carolina Administrative
Law Judge
Protestants have the right to appear at the hearing to testify in opposition
to the application and have limited participation in the proceedings.
Protestants may choose to be represented by an attorney. A Protestant is not considered a party of record to the contested case. Byers v. S.C. Alcoholic
Beverage Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). To
have full participation rights at the hearing, including the right to cross
examine witnesses, to receive a copy of the Administrative Law Judge’s order,
and to appeal an adverse decision, a Protestant must request to be admitted as
a party. See Sabella v. S.C. Alcoholic Beverage Control Comm’n,
289 S.C. 400, 346 S.E.2d 530 (Ct. App. 1986). Rule 20 of the Rules of
Procedure for the Administrative Law Court provides that a person may intervene
in a pending case upon a proper showing.
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