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. 2008),
and S.C. Code Ann. § 61-2-90 (Supp. 2008) for a contested case hearing.
Petitioner is seeking a 7-day off-premises beer and wine permit for KA &
VE, LLC. After proper notice, a hearing was held on March 26, 2009 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 a 7-day off-premises beer and wine permit for KA & VE, located at 5581 Memorial Blvd., St. George, South Carolina. Petitioner 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.
2. Virgil
Barnwell is the owner of KA & VE. Mr. Barnwell purchased the store
December 8, 2008 and has been continuously operating the convenience store and
gas station since. He obtained a temporary 180-day beer and wine permit which
expires on April 4, 2009. Mr. Barnwell has not had any problems or complaints
since he began to operate the store. He has met with the local police
department regarding a problem with loitering and the police have agreed to
patrol the corner where loitering has been a problem in the past. There are
also signs posted warning against loitering. There is sufficient lighting
outside, including a light on the corner that stays on 24 hours a day. The
store will be run by either Mr. Barnwell or his wife at all times.
3. KA & VE
is located in a commercial area on a four lane road. A Piggly Wiggly, which is
permitted to sell beer and wine, is located across Sears St. Furthermore,
Carter’s Fast Stop, which is one block in the opposite direction, holds an
off-premise beer and wine permit. The location next to Carters is licensed for
the sale of liquor for off-premises consumption.
4. The primary
issue for consideration is the protest to the permit.
Ralph James is the sole protestant to the issuance of this permit. Mr. James is
concerned that the issuance of a beer and wine permit will lead to loitering in
the area, specifically on the church grounds of Bethel AME Church. He testified that in the past, patrons of KA & VE have come onto church property
and interrupted services. He is also concerned with beer cans littering the
church parking area. The church is located approximately 445 feet from KA
& VE.
The Court was struck by
the sincerity of the Protestant. However, while Mr. James’s arguments appear
to be based on a genuine concern for the church and community, in order to deny
the permit, there must be specific evidence of an adverse impact to the
community. There was no evidence of an existing criminal problem that could be
exacerbated by granting the permit. There appears to be little, if any,
problems with loitering at the location. Moreover, the proposed location was
previously permitted to sell beer and wine under different ownership. Therefore,
the Protestant must show that the location is less suitable for the sale of
beer and wine than during the prior period of licensure. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
The issue here is
rather the potential that the sale of beer of wine will result in the
consumption of the product upon the church’s property. However, even if this
location was denied, as noted above, there are other approved locations in the
immediate vicinity to purchase beer or wine. In fact, though there may have
been problems with consumption of beer or wine upon the church’s property in
the past, the store is now under different ownership and the new owner is
willing to coordinate with the church to allay concerns about the sale of
alcohol to those who loiter on the church property. More specifically,
Petitioner stipulated that if the church informed Mr. Barnwell of the confirmed
identity of a person who was purchasing beer or wine from his location and
consuming it upon the church’s property, he would not sell any beer or wine to
that person.
Therefore
in light of the above evidence and Petitioner’s stipulation, I find that Petitioner’s
proposed location is suitable for a 7-day off-premises beer and wine permit. However,
if a significant change occurs as a result of Petitioner receiving this permit,
the proposed location would no longer be suitable and the community and/or the
Department could properly bring an action to prohibit the renewal of
Petitioner’s 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. 2008) 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 a 7-day 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
April 2, 2009
Columbia, South Carolina
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