SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007) for a contested case hearing. Petitioner Gwendolyn Robinson seeks an on-premises beer and wine permit for Riverdale Convenience, located at 2402 Highway 9 East in Dillon, South Carolina. Respondent South Carolina Department of Revenue denied Petitioner’s application for the permit solely because of a protest filed by Pastor Larry K. Abraham of Riverdale Baptist Church, located at 2503 Highway 9 East in Dillon, South Carolina, regarding the suitability of the proposed location for Petitioner’s store. After timely notice to the parties and the protestant, a hearing of this case was held on February 19, 2008, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the location and upon the applicable law, I find that Petitioner’s application for an on-premises 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 October 24, 2007, Petitioner Gwendolyn Robinson submitted an application to the Department for an on-premises beer and wine permit for her store, Riverdale Convenience, located at 2402 Highway 9 East in Dillon, 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 Dillon Herald, a newspaper published and circulated in Dillon, South Carolina, and proper notice of the application was posted at the proposed location for fifteen days.

3. Petitioner is over twenty-one years of age, has no delinquent tax returns, and is a legal resident of the United States and the State of South Carolina. Further, Petitioner resides and maintains her principal place of abode in South Carolina, and did so for at least thirty days prior to making her application.

4. Petitioner has no criminal record and there is nothing in the record to suggest that she is not a person of good moral character or is otherwise unsuitable to hold a beer and wine permit. Petitioner has not previously held a permit to sell beer and wine, and the record does not reveal that Petitioner has ever committed any violations of South Carolina’s alcoholic beverage laws.

5. Petitioner’s store is situated on Highway 9 East, a major thoroughfare in the Dillon area. The area surrounding the business is commercial development. Riverdale Baptist Church is located 350-400 feet from the proposed location. There is a club right next to the church. There are four other convenience stores and a liquor store within a one-mile radius. Dillon Freewill Baptist Church is 2.4 tenths of a mile from the proposed location. There are no other churches, schools, or playgrounds within five hundred feet of Petitioner’s store or in the broader vicinity of the proposed location. The sheriff’s office stated to the Department investigator that a lot of drug activity takes place in the vicinity of the proposed location.

6. Ms. Robinson has been renting the premises with an option to buy since November 1, 2007. The convenience store is within the county but not within the city limits and has been in operation under prior owners for approximately fifteen years. The last proprietor, William Ford, had a beer and wine permit that expired on May 1, 2007. The store is open from 7 a.m. until 12:00 midnight seven days a week. Ms. Robinson is there from 8 a.m. until 8 p.m. seven days a week and cannot afford to hire management help at this time. The store sells fast food seven days a week and operates a buffet Thursday through Sunday. Church members from the pPr[ME1] otestant’s congregation frequently stop in for food on Sundays, and the protestantPastor Abraham [ME2] stated he has also done so.

7. The protestant, Pastor Larry K. Abraham, opposed Petitioner’s application for an on-premises beer and wine permit[ME3]  because the business is located close to his church and has been a hang out[ME4]  for drunks and drug users in the past. Thus, he asserts the sale of alcohol would not be in the community’s best interests. The church was established in 2001 in a building across the street that was previously a garage. Pastor Abraham retired from the military in 1996 and opened the garage at that time.

8. In response to Pastor Abraham’s protest, Gwendolyn Robinson responded that the store has had a beer and wine license permit[ME5]  for approximately fifteen or at least ten years under different owners and is located in a commercial zone where three other stores also sell beer and wine. The prior owner put up a basketball goal that attracted young boys. Ms. Robinson stated that even prior to the protestant’s complaint, she was trying to ensure the same problems do not continue. She has met with the sheriff’s department and asked them to patrol the area and put up and enforced a “no loitering” sign. She has had no complaints since she took over the business last November. Since the church holds services primarily on Sunday and she is unable to sell beer and wine on that day, operation of the proposed location would not be disruptive of[ME6]  the church services. She testified that the church also holds services on Tuesday night, but there are only two or three cars there. She runs a reputable business, and the store appears very clean, but she needs the on-premise beer and wine permitlicense [ME7] to compete with the other four convenience stores in the area.

9. In response to the drunks and drug addicts that hang out on the corner where the convenience store is located, Pastor Abraham founded the Committee of Concerned Citizens, which also does Pre-Trial Intervention (PTI) for Dillon County. He avers that graffiti and litter from drunks and drug addicts are[ME8]  is prevalent in the crossroad across from the store and in the yard beside the church, which is disruptive to church services. He testified he has no problems with her business but experienced substantial problems under the prior permitted business, Grand Prix, which operated as a night club. He states the sheriff’s office patrols the end where the other four stores are better, but they are unresponsive when complaints are received about this area. While his Committee and PTI program has[ME9]  have made progress, there is still much to be done and people still hang out on that corner, even though Riverdale Convenience is not currently selling beer. Pastor Abraham does not know where the people get their alcohol or drugs. He would like Ms. Robinson to have a business and make a living but is concerned about drug addiction, drunkenness, and the attendant crime problems.

10. The Department and counsel for Ms. Robinson[ME10] Mr. Allen stipulated as a conditions[ME11]  of the permit[ME12]  license that, even though she seeks an on-premise beer and wine permit, Ms. Robinson would continue to operate as a convenience store and not as a nightclub and that she would continue to work with the sheriff’s department to keep problems under control and enforce her “no loitering” sign.

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. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007).

2. “[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).

3. S.C. Code Ann. §§ 61-4-500 through 61-4-620 (Supp. 2007) govern applications for retail beer and wine permits and establish the criteria for determining eligibility for those permits. Further, S.C. Code Ann. § 61-2-100 (Supp. 2007) lays out the general requirements that all applicants for permits and licenses to sell alcoholic beverages must satisfy.

4. S.C. Code Ann. § 61-4-520 (Supp. 2007) 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(6)-(7). S.C. Code Ann. § 61-6-1820 (Supp. 2007) sets forth the basic criteria for the issuance of a license to sell liquor by the drink. Although the suitability of the proposed location is not listed in Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981). [ME13] 

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. 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).

7. However, without sufficient evidence of an adverse impact on the community, a permit application must not be denied if the 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).

8. Further, the denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not supported by the facts. 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).

9. A permit cannot be denied where concerns about criminal problems resulting from the operation of the licensed business are entirely speculative or where claims that the business’s operation will overburden local law enforcement are not supported by competent evidence. See, e.g., Smith v. Pratt, 258 S.C. 504, 508, 189 S.E.2d 301, 302 (1972) (holding that renewal of beer and wine permit could not be denied where testimony of those objecting to renewal “consisted only of generalities, opinions, conclusions and hearsay reports” unsupported by competent evidence); see also, e.g., Dep’t of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., 175 Cal. Rptr. 342, 346 (Ct. App. 1981) (holding that denial of application for on-premises beer and wine permit was not supported by “good cause” because conclusion that some sort of “disturbances” would “sometimes” occur on premises was too speculative and finding that law enforcement response time to location was “slow” was vague and unsupported by evidence in record); Rais v. City of Gunnison, 539 P.2d 1328, 1330 (Colo. Ct. App. 1975) (stating that “[m]ere suspicion that there might be future problems with noise, policing, and parking is not a valid reason to deny a license”); Moberly v. Johnson, 376 S.W.2d 529, 530 (Ky. 1964) (reversing denial of retail beer license because, among other things, “[t]he testimony concerning the police protection in the area of the proposed premises cannot reasonably be held to establish inadequacy in view of the fact that the area is continuously patrolled”).

9. 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 proposed location is unsuitable for Petitioner’s store or that the issuance of the permit and license in question would create problems in or have an adverse impact upon the surrounding community. Petitioner’s establishment is located along a major thoroughfare in an area with other businesses that are licensed for the sale of alcoholic beverages. Accordingly, there is no evidence in the record to suggest that, given the nature of Petitioner’s proposed business, the sale of beer and wine at Petitioner’s store will have an adverse impact upon the surrounding community or will otherwise be out-of-keeping with the character of that community.

10. Therefore, while this Court is respectful of the protestant’s opposition to the requested permit and license, the arguments proffered by the protestant do not constitute a sufficient basis upon which to deny Petitioner’s application. The nature of her establishment as a convenience store serving food will not usually engender the same sort of problems associated with establishments that allow patrons to congregate and consume alcohol on their premises, with the attendant merrymaking and disturbances that typically accompany the operation of a lounge or nightclub. Even among businesses selling alcoholic beverages for on-premises consumption, there is a substantial difference between the character of a restaurant that offers alcoholic beverages purely as an accompaniment to its meals and the character of a tavern or bar whose primary, if not exclusive, purpose is the sale of alcoholic beverages. See, e.g., Bergmann v. City of Melrose, 420 N.W.2d 663, 667 (Minn. Ct. App. 1988) (“An establishment that serves only liquor is qualitatively different from a restaurant that serves liquor only as an adjunct to food.”); City of Memphis Alcohol Comm’n v. Randall Mem’l Free Will Baptist Church, Inc., 550 S.W.2d 657, 660 (Tenn. 1977) (“We think it apparent that there can be a different impact upon public health, safety, and morals from the sale of beer at a tavern, where alcoholic beverages are the principal commodity sold, and the sale of beer at a family-style restaurant, where food is the principal commodity and beer is sold only to complement the food, and the sale of beer at the neighborhood grocery store where small children delight to go.”).

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 on-premises beer and wine permit for the premises located at 2402 Highway 9 East in Dillon, South Carolina. The stipulated[ME14] ion requirements[ME15] stipulation that Ms. Robinson shall operate as a convenience store, not a nightclub, and shall continue to work with the sheriff’s office and enforce “no loitering” are made conditions on the permit.

AND IT IS SO ORDERED.

______________________________

February 211, 2008 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731