ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (ALC or
Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2007),
and S.C. Code Ann. § 61-2-90 (Supp. 2007) for a contested case hearing.
Petitioner is seeking an off-premises beer and wine permit for Blue Water
Convenience Store. After proper notice, a hearing was held on August 14, 2008
at the offices of the ALC in Columbia, South Carolina.
FINDINGS
OF FACT
Having observed the
witnesses and exhibits presented at the hearing and closely passed upon their
credibility, taking into consideration the burden of proof upon the Petitioner
and the Respondent, I make the following Findings of Fact by a preponderance of
the evidence:
1. Petitioner
seeks an off-premises beer and wine permit for Blue Water Convenience Store,
located at U.S. Hwy. 176, Berkley, South Carolina.
2. Petitioner
has been a resident of the State of South Carolina for over 12 months. Petitioner
also has not had a permit or license revoked within the last two (2) years and notice
of the application was lawfully posted both at the location and in a newspaper
of general circulation.
3. Blue Water
Convenience Store will be located on a tract of land that is approximately 32
acres. The company which sold the land to Petitioner is developing the tract
into a large commercial shopping center with banks, grocery stores, and
restaurants. Though the area is now generally rural, it is rapidly developing into
a commercial area with 3,000 new residences being built behind the commercial development.
Blue Water will be open
from 6 a.m. to 10 p.m. In addition to the proposed beer and wine sales, it will
sell gas along with hot dogs, cokes, and candy. Blue Water, following the
company policy of Tiger Stop South, will take many steps to insure that no
underage sales of alcohol occur. These include participating in the “We Card”
program, the Exxon mystery shop program, and a third party mystery shop
program. Furthermore, there is a policy to card everyone who appears to be
under the age of 40 and any employee who is caught selling to an underage
individual or who doesn’t properly card during a secret shopper test will be
terminated.
4. The
issuance of the permit is contested by Wesley Croft. Mr. Croft’s main concern
is that alcohol will be sold in close proximity to his church. The convenience
store is approximately 650 feet from Gethsemane Baptist Church. Mr. Croft is
also concerned with the possibility that students of Cane Bay High School may be involved in accidents emanating from the stores sale of beer or wine.
5. Mr. Croft’s arguments appear to be based on a
sincere concern for his community. However, in order to deny this permit,
direct evidence of an adverse impact on the community is necessary. Though the
evidence offered raises “potential” concerns that this business may change the
integrity of the vicinity, the evidence did not establish that the granting an off-premise
permit for this location will have an overall adverse impact on the community.
The proposed location will be operated as a commercial convenience store at
which customers will not be permitted to drink upon the premises. The nature
of Petitioner’s business, especially in light of its history of cooperating with
local churches, reflects a minimal impact to Gethsemane Baptist Church, if any. Furthermore, the contention that the sale of beer or wine at this location
would exacerbate traffic accidents for students of Cane Bay High School, which is approximately 8/10 of a mile away from the proposed location, is blatant
speculation. Therefore, I find that Petitioner’s proposed location is suitable
for an off-premise beer and wine permit.
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.
Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the Court the
responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
2. S.C.
Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2006) set forth the requirements for
the issuance of a beer and wine permit.
3. 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 118 (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 the adverse effect the proposed
location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984). 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. Smith v. Pratt, 258 S.C. 504; Taylor v.
Lewis, 261 S.C. 168.
“A
liquor license or permit may also be properly refused on the ground that the
location of the establishment would adversely affect the public interest, that
the nature of the neighborhood and of the premises is such that the
establishment would be detrimental to the welfare . . . of the inhabitants, or
that the manner of conducting the establishment would not be conducive to the
general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121
at 501 (1981). Nevertheless, 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).
4. Petitioner
meets the statutory requirements for holding an off-premise beer and wine
permit at the proposed location.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the Department resume processing Petitioner's
application for an off-premise beer and wine permit.
AND
IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
August 19, 2008
Columbia, South Carolina
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