South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Barbara McGill, d/b/a McGill’s Corner Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Barbara McGill, d/b/a McGill’s Corner Store
262 Williamsburg Avenue, Lake City, South Carolina

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0048-CC

APPEARANCES:
Barbara McGill
Petitioner, pro se

Beverly Alford
Protestant, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

The above-captioned case comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005) for a contested case hearing. Petitioner Barbara McGill seeks a beer and wine permit for an establishment to be known as McGill’s Corner Store, located at 262 Williamsburg Avenue in Lake City, South Carolina. Respondent South Carolina Department of Revenue (Department) would have granted the permit but for the protest filed by a local resident regarding the suitability of the proposed location. Accordingly, the Department was excused from appearing at the hearing of this matter.

After timely notice to the parties and the protestant, a hearing of this case was held on April 28, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented at the hearing regarding Petitioner’s suitability to hold the requested permit and upon the applicable law, I find that Petitioner’s application for a retail beer and wine permit must be denied.

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:

Petitioner’s Application

1.On or about September 13, 2004, Petitioner Barbara McGill submitted an application to the Department for an on-premises beer and wine permit for a tavern and pool hall to be known as McGill’s Corner Store, located at 262 Williamsburg Avenue in Lake City, South Carolina. The 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 in the Lake City News and Post, a newspaper published and circulated in Lake City, South Carolina, once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

Proposed Location

3.The proposed location is situated near the corner of Williamsburg Avenue and Knight Street in a primarily residential area of Lake City, South Carolina. The nearest residence is approximately 350 feet from the location, and a number of residences are located within several hundred feet of the proposed location. There are no schools or playgrounds within the vicinity of the location, and the nearest church is over one thousand feet away from the proposed location.

4.The location has been licensed for the sale of beer and wine in the past, and has previously operated as a convenience store. Protestant Beverly Asford, a nearby resident, testified at the hearing that the sale of beer and wine at the proposed location would contribute to problems with violent crime and drug trafficking in the surrounding community, and, in particular, would exacerbate the problems related to persons loitering on the corner where the store is located.

5.Petitioner currently leases the proposed location from Annie Graham and Elijah Wilson.

Applicant and Proposed Operations

6.Petitioner is over twenty-one years of age, has no delinquent state or federal taxes, and is a legal resident of the United States and of 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 for a beer and wine permit.

7.While Petitioner was convicted of possessing gambling material in 1996, for which she forfeited $152, Petitioner has no other criminal record and there is no evidence in the record to suggest that Petitioner has engaged in acts or conduct implying the absence of good moral character. Further, Petitioner has not had a beer and wine permit suspended or revoked, and the record does not reveal that Petitioner has committed any violations of South Carolina’s alcoholic beverage laws.

8.Despite her other qualifications, Petitioner does not appear to be a suitable person to be licensed for the sale of beer and wine at the proposed location. At the hearing of this matter, Petitioner could not state the precise nature of the business she intends to operate at the proposed location. Petitioner’s application indicates that she seeks a permit to sell beer and wine for on-premises consumption and describes the nature of her business as a “tavern-pool [hall].” The published notice of application also stated that Petitioner was seeking a permit that would allow on-premises consumption of beer and wine. However, at the hearing, Petitioner testified that she intends to operate a convenience store at the location and could not definitively state whether she wished to sell beer and wine for on-premises or off-premises consumption. As initially described in her testimony, Petitioner’s store would only be open between the hours of 6 p.m. and midnight, would offer music as entertainment, and would allow patrons to consume beer and wine on the premises. The business would not offer food for sale, other than hot dogs, and would not have tables and chairs or other seating. After a recess was taken to allow Petitioner to clarify the nature of her permit request, Petitioner amended her request to seek a permit allowing the sale of beer and wine for off-premises consumption, but did not otherwise clarify or describe the nature of the business she proposes to operate at the location.

Given Petitioner’s uncertainty about the basic nature of the establishment she seeks to operate at the location in question and about other fundamental aspects of her business, this tribunal cannot find that Petitioner is a suitable person to be licensed to sell beer and wine at the proposed location. These uncertainties raise serious questions as to what the true nature of Petitioner’s establishment will be and give this tribunal serious doubts as to whether Petitioner’s business, if granted a permit, will operate in compliance with the terms of the permit and the statutes and regulations governing the sale and consumption of beer and wine. Further, these concerns are heightened by the location of Petitioner’s proposed business in a residential area struggling with a crime problem, where the detrimental effect of any disorderly operations at Petitioner’s business would be magnified as compared to operations at a more isolated location.

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. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).

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. 2004) 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. 2004) lays out the general requirements that all applicants for permits and licenses to sell alcoholic beverages must satisfy.

Suitability of Location

4.S.C. Code Ann. § 61-4-520 (Supp. 2004) 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).

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.In the case at hand, this Court cannot find that the location in question is necessarily unsuitable for the sale of beer and wine for off-premises consumption. While the protestant presented serious concerns regarding the impact of the sale of alcoholic beverage at the location, it is not entirely clear that the proposed location is unsuitable for the operation of a true cash-and-carry convenience store selling beer and wine solely for off-premises consumption, if operated under suitable ownership and management.

Suitability of Applicant

9.The criteria for the issuance of a retail beer and wine permit also require that the applicant be a person of “good moral character.” S.C. Code Ann. § 61-4-520(1) (Supp. 2004). Further, Section 61-4-540 provides that a beer and wine permit should not be issued unless “the applicant is a fit person to sell beer and wine.” S.C. Code Ann. § 61-4-540 (Supp. 2004); cf. S.C. Code Ann. § 61-6-910 (Supp. 2004) (requiring the denial of an application for a license under the Alcoholic Beverage Control Act if “the applicant is not a suitable person to be so licensed”).

10.In the instant case, while it appears that Petitioner is a person of good moral character, this Court cannot find that Petitioner is a suitable person to be licensed for the sale of beer and wine at the proposed location. As discussed above, Petitioner’s inability to state the basic nature of the business she intends to operate raises serious concerns with this tribunal regarding Petitioner’s ability to sell beer and wine in compliance with the terms of her permit, in conformance with the statutes and regulations governing the sale of alcoholic beverages, and in comity with the surrounding community. Given the location of the premises to be permitted, the sale of beer and wine at that location, whether for on- or off-premises consumption, should only be undertaken carefully and under close control. Petitioner has not demonstrated to this Court that she is a suitable person to sell beer and wine in such circumstances.

Conclusion

11.The issuance or denial of a permit or license rests within the sound discretion of this tribunal as the trier of fact. Inherent in the power to issue a permit or license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the requested permit in the instant case is compelled because Petitioner has not established that she is a suitable person to sell beer and wine at the proposed location.

ORDER

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

IT IS HEREBY ORDERED that Petitioner’s application for a retail beer and wine permit for the premises located at 262 Williamsburg Avenue in Lake City, South Carolina, is DENIED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

June 2, 2005

Columbia, South Carolina


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