SC Administrative Law Court Decisions

This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007), 1-23-600(B) (Supp. 2007), 61-2-260 (Supp. 2007), and 61-4-525 (Supp. 2007). Soomro Enterprise, LLC, d/b/a In N Out Convenience Store (“Petitioner”), seeks a 7-day off-premises beer and wine permit for its location at 759A Rutledge Avenue, Charleston, South Carolina (“location”). Protests to the application were filed with the South Carolina Department of Revenue (“Department”). Because of the protests, the hearing was required.

A hearing in this matter was held on January 25, 2008 at the offices of the ALC in Columbia, South Carolina. Both parties and Protestants Christopher Morgan, Carol Aust, and Joseph H. Wolfe, Jr. appeared at the hearing.[1] Evidence was introduced and testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for a 7-day off-premises beer and wine permit should be granted with restrictions.

FINDINGS OF FACT

Having observed the witnesses and reviewed the exhibits presented at the hearing and closely passed upon their credibility, and having taken into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner seeks a 7-day off-premises beer and wine permit for its business located at 759A Rutledge Avenue, Charleston, Charleston County, South Carolina. The location is inside the city limits of Charleston.

2. Soomro Enterprise, LLC, d/b/a In N Out Convenience Store, is a limited liability company in good standing with the South Carolina Secretary of State. It has a reputation for peace and good order in the community.

3. Ishtiaque Soomro is the sole officer and owner of Soomro Enterprise, LLC. Mr. Soomro is over the age of twenty-one (21) and is of good moral character. He is a legal resident of the United States and the State of South Carolina. He has maintained his principal place of abode in this state for at least thirty (30) days prior to making this application. He has never had a permit or license to sell beer, wine or alcoholic beverages suspended or revoked.

4. Notice of the application was lawfully posted at the location and in a newspaper of general circulation.

5. The location is in a newly-constructed building within a mixed commercial and residential area in downtown Charleston, South Carolina known as “Wagner Terrace.” This area is a densely populated urban area which is currently undergoing revitalization. The location is adjacent to a coin laundry business located on the first floor of the building. Apartments, where college students primarily reside, are located in the upper floors of the building.

6. Petitioner opened the location in January 2008 and operates it as a convenience selling a limited line of groceries, household supplies, and lottery tickets. Its hours of operation are from 7:00 a.m. to 11:00 p.m., seven days a week.

7. At least one employee, in addition to Mr. Soomro and/or his son, Faiz Soomro, is present at the location during all hours of operation. Faiz Soomro assists his father in operating the convenience store. He is over the age of twenty-one (21) and is of good moral character.

8. Employees at the location are instructed to check the identification of all customers who wish to purchase tobacco products in order to verify that they are at least eighteen (18) years old. Employees will likewise continue to check identification of all customers who wish to purchase beer and wine to verify that they are at least twenty-one (21) years of age. To assist in verifying customers’ ages, Petitioner uses the We Card calendars that verify the latest date on which a customer could be born in order to meet the minimum age requirement.

9. Petitioner also owns and operates the coin laundry business adjacent to the location at 759B Rutledge Avenue. Petitioner opened it in mid-2007, spending approximately $300,000 to $400,000 in up-fitting costs. Its hours of operation are from 7:00 a.m. to 11:00 p.m., seven days a week. At least one employee is present inside the coin laundry at all times of operation. No drinking, eating or smoking is allowed inside the business. There have been no problems at the coin laundry since it has been open.

10. Petitioner has posted no loitering signs outside the location.[2] In addition, Petitioner removes all litter and debris outside the location every morning. There are no benches or other seating areas outside the location. Furthermore, limited signage is posted in the windows at the location.

11. Several days a week, the wife of Petitioner’s landlord sells shrimp on the street corner outside Petitioner’s location. Petitioner has no control over this activity.

12. Parking is available in the parking lot at the location for approximately twenty-four (24) cars. These parking spaces are also used by customers of the coin laundry business.

13. No music, either via speakers or otherwise, is played inside or outside the location or at the coin laundry.[3]

14. The location has numerous windows that provide a panoramic view of the outside of the location. Also, there are two entrances to the location, one from Rutledge Street and the other from Grove Street.

15. Petitioner installed a security camera system at the location. Cameras monitor both the inside and outside of the location and the coin laundry business next door. The security camera footage can be monitored from inside the location or via the internet, and it is kept for one month before it is purged.

16. Police frequently patrol the area surrounding the location by car and/or horse. Also, at night police often park in a parking lot across the street from the location while completing paperwork.

17. Prior to moving to South Carolina, Mr. Soomro lived in New Orleans, Louisiana where he operated a Shell gas station that was permitted for the sale of beer and wine for off-premises consumption for more than nine (9) years. He did not have any alcohol related violations at that location. Due to the devastation of Hurricane Katrina in 2005, Mr. Soomro moved to Atlanta, Georgia, where he lived for a short period of time, and then to Charleston, South Carolina in February 2006. At that time, without being familiar with the Charleston area, he leased Jabers Supermarket (“Jabers”) located at 635 Rutledge Avenue, Charleston, South Carolina.

18. Jabers has been in operation as a supermarket at its present location for approximately thirty (30) years. It is in a small shopping center in a low-income area. Other businesses in the strip mall include a liquor store, a hair salon, and a Laundromat. Petitioner has no control over them nor has any ownership interest in any of the other businesses.

19. There is a lot of customer traffic at Jabers. In addition to food item and general convenience store sales, Jabers has a contract with a local labor company to cash paychecks for its day laborers.

20. Petitioner currently holds a permit for the sale of beer and wine for off-premises consumption at Jabers. It has not had any alcohol related violations since it began operating Jabers in 2006.

21. Petitioner has had some problems with loitering outside of Jabers and in the parking area; it has attempted to control the loitering problem as much as possible and on occasion has called local law enforcement for assistance. Petitioner has also attempted to deal with litter accumulations outside the location. The landlord is responsible for picking up litter on the outside but has not done a very good job. Any attempts to resolve problems with loitering and litter have been unsuccessful because of a lack of cooperation from adjoining business owners. These problems have existed at this shopping center for many years and will most probably continue. For that reason, Petitioner desires to conduct his businesses elsewhere.

22. The lease agreement for Jabers contains a provision which allows Petitioner to opt-out in February 2008. Petitioner intends to exercise that option and surrender the beer and wine permit it currently holds for Jabers.

23. There are several locations in close proximity to Petitioner’s convenience store that are permitted and licensed for the sale of beer, wine and liquor. The Ark Bar is a private club located on Grove Street next to the location. Granville’s Restaurant is across the street from the location and Moe’s Bar is located nearby at the corner of Rutledge and Grove Streets. All of these locations are permitted and licensed for the sale of beer, wine and liquor. Also, there is a Food Lion grocery store approximately one block from the location on Grove Street that is permitted for the sale of beer and wine for off-premises consumption. Loitering and litter are problems at the Food Lion which have caused it to employ a full-time off-duty police officer. However, the presence of the officer has not successfully stopped loitering and littering from occurring there.

24. The old River Dogs baseball stadium is directly across the street from the location and a dog park is located next to the stadium. Hampton Park is approximately two (2) blocks from the location, and inside Hampton Park is McMahon playground. Asbury St. James United Methodist Church is located next to the Food Lion grocery store.

25. Protestant Christopher Morgan lives with his family approximately three and a half (3 ½) blocks from the location. He is a City Planner for the City of Charleston. His primary concern is the proximity of the location to nearby places where families gather, including the dog park, Hampton Park, and McMahon playground. Also, he is concerned about the number of locations nearby that are permitted or licensed to sell beer, wine and/or liquor. In addition, because Petitioner currently operates Jabers, Mr. Morgan is worried that the new location will draw the same crowd and problems as Jabers and the Food Lion which will result in loitering, public intoxication, and litter outside the location, and an increase in crime and drugs in the area.

26. Protestant Joseph H. Wolfe, Jr. also lives in close proximity to the location. He is concerned about traffic problems in front of the location due to shrimp being sold on the corner by the landlord’s wife and the general aesthetics of the store. Specifically, it is Mr. Wolfe’s opinion that the signage at the location, including the “No loitering” signs, lottery ticket sales signs, and the sandwich board “trash” the area and are not in keeping with the general aesthetics of the surrounding area.

However, Mr. Wolfe frequents and is a long-time member of the Ark Bar located next door to the location. Although he and another Protestant acknowledge that the Ark Bar is not in keeping with the general aesthetic look of the area, he does not object to its appearance because it has been “grandfathered in” due to the length of time it has been in operation at that location.

Mr. Wolfe also expressed safety and aesthetic concerns regarding individuals who ride their bicycles to the location and leave them on the sidewalk outside the entrance while they are inside shopping. In addition, he is worried that the outside of the location may become littered and that it will draw a less desirable crowd from other areas of Charleston into Wagner Terrace.

27. Protestant Carol Aust also lives in Wagner Terrace. Ms. Aust is an executive member of a charter school that will be opening at the old Rivers Middle School in August 2008. The school will be located approximately two (2) blocks from the location on the corner of Grove and King Streets. Ms. Aust is concerned that the location will draw the same crowd that frequents Jabers, and that problems with loitering, cursing, and public intoxication will occur there.

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 (Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the Administrative Law Court the responsibility to determine contested cases matters governing alcoholic beverages, including beer, wine and liquor.

3. S.C. Code Ann. § 61-4-520 (Supp. 2007) sets forth the requirements for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one.

4. S.C. Code Ann. §§ 61-4-510 and 61-6-2010 (Supp. 2007) provide for the issuance of seven-day permits for the sale of beer and wine for off-premises consumption in those counties and municipalities that have held referenda specifically authorizing such sales of beer and wine. See also Piedmont Petroleum Corp. v. S.C. Dep't of Revenue, Docket No. 03-ALJ-17-0337-CC (S.C. Admin. Law Ct. July 20, 2004) (en banc).

5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

7. 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 proper for this Court to consider any evidence that demonstrates any adverse effect the proposed location will have on the community. Palmer, supra. It is also 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. Id.

8. Unless there is 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 48 C.J.S. Intoxicating Liquors § 166 (2004).

9. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the State’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

10. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2007) authorizing the imposition of restrictions on permits, 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. The Department may seek revocation or suspension of permits for the sale of beer and wine “on its own initiative or on complaint signed and sworn to by two or more freeholders resident for the preceding six months in the community in which the licensed premises are located or by a local peace officer, all of whom are charged with the duty of reporting immediately to the department a violation of the provisions of Section 61‑4‑580…” S.C. Code Ann. § 61-4-590 (Supp. 2007).

12. With the restrictions set forth below, I find that the location is suitable for the issuance of a 7-day off-premises beer and wine permit.

Petitioner operated a convenience store permitted for the sale of beer and wine for off-premises consumption in New Orleans, Louisiana for approximately nine (9) years without incident. In addition, Petitioner has held an off-premises beer and wine permit for Jabers and has operated that location since February 2006 without any alcohol-related violations. Although there have been problems with loitering and litter outside the Jabers location, Petitioner has acted responsibly to attempt to control those problems. Jabers is located in a low-income area and has a long history of issues with loitering and the accumulation of litter outside. Further, some of those problems emanate from the clientele of the other businesses adjacent to Jabers, over which Petitioner has no control. When Mr. Soomro decided to move to Charleston and lease Jabers, he was not familiar with the area or the location, but relied upon the advice of another in deciding to lease the business. Clearly, Petitioner wishes to relinquish its lease at Jabers and move to another location where it can operate a convenience store that is not plagued by the same problems. Petitioner has given every indication that it will operate the new location in a manner that will not attract the same crowd and problems that exist at Jabers. In fact, Petitioner has expended substantial sums of money in both the convenience store and the coin laundry business and would not have done so if it anticipated the same problems encountered daily at Jabers. Further, Petitioner has installed a technologically sophisticated security camera system at the location that allows both the inside and outside of the location and the coin laundry business to be monitored from within the location and via the internet. Petitioner appears willing to consider the concerns of the Protestants as evidenced by his removal of all but one “No Loitering” sign posted outside of the building based upon an objection to their appearance by a Protestant.

The Court is sensitive to the concerns of the Protestants regarding the landlord’s wife selling shrimp on the corner outside the location. However, that is an issue that must be left to local law enforcement and local jurisdictions to address. This court does not have the authority to address that activity through the imposition of restrictions on the permit. As to the Protestants’ concerns about the aesthetics of the location, I find that the newly constructed building is in keeping with the general character and look of the neighborhood. Additionally, I find that the location is not unreasonably close to any school, church or playground. The location is in a densely populated urban area of downtown Charleston, and there are several other establishments to which the Protestants have no objection, that are permitted and licensed for the sale of beer, wine and/or liquor in close proximity to the location, including Granville’s restaurant, the Ark Bar, and Moe’s Bar.

Therefore, I conclude that Petitioner meets all statutory requirements for the issuance of a 7-day off-premises beer and wine permit. The Court finds that it is Petitioner’s desire to establish a clean and attractive store where litter will not be allowed to accumulate and loitering will not be tolerated. Accordingly, I conclude that the location will not have an adverse impact on the surrounding community and is suitable for a 7-day off-premises beer and wine permit as long as it conforms to the restrictions set forth below.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the application for a 7-day off-premises beer and wine permit submitted by Soomro Enterprise, LLC, d/b/a In N Out Convenience Store for its location at 759A Rutledge Avenue, Charleston, South Carolina is GRANTED contingent upon Petitioner signing a written agreement with the South Carolina Department of Revenue agreeing to the restrictions set forth below:

RESTRICTIONS

1.      Petitioner and its employees will, at all times, prohibit loitering and the consumption of beer, wine, or alcoholic beverages inside and outside the location.

2.      Petitioner will ensure that litter on the outside of the premises is collected and removed each morning and each night.

3.      Petitioner will install a bicycle stand in the sidewalk area at the front entrance to the location if permitted by City of Charleston ordinances. No bicycles will be allowed to be placed on the ground at the entrances to the location.

4.      Petitioner must maintain the security camera system in good working condition at all times and maintain all security footage for not less than thirty (30) days.

5.      At least one employee must be present inside the location during all times it is open for business. This employee will only be responsible for the operation of the location and will not be simultaneously responsible for the operation of the coin laundry business next door.

IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be considered a violation against the permit and may result in a fine, suspension, or revocation of the permit.

AND IT IS SO ORDERED.

__________________________________

February 12, 2008 Marvin F. Kittrell

Columbia, South Carolina Chief Administrative Law Judge