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:
Cynthia J. Williams, d/b/a D’s Drive-Thru vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Cynthia J. Williams, d/b/a D’s Drive-Thru

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
07-ALJ-17-0430-CC

APPEARANCES:
Cynthia J. Williams
Petitioner, pro se

Andrew Fiffick, Esquire
For Respondent

Richard B. Little
Cindy J. Little
Protestants, pro se
 

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.[1]

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.[2] 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



[1] 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.

[2] Notably, no law enforcement officials or other local officials submitted a protest or appeared at the hearing to oppose the permit application.


~/pdf/070430.pdf
PDF

Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court