ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Spinx
Company, Inc., d/b/a Spinx #193 (“Petitioner”), for an off-premises beer and wine permit for a
location at 697 Fairview Road, Simpsonville, South Carolina (“the subject location”). Upon receipt
of a written protest to the application, the South Carolina Department of Revenue (“DOR”)
transmitted the case to the Administrative Law Judge Division (“ALJD”) for a hearing. After timely
notice to the parties and the Protestant, a contested case hearing was held on March 20, 2003, at the
ALJD in Columbia, South Carolina. DOR was excused from attending the hearing. Upon review
of the relevant and probative evidence and applicable law, the application for an off-premises beer
and wine permit is granted.
FACTS
Having carefully considered all testimony 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.Notice of the time, date, place and subject matter of the hearing was given to all
parties and to the Protestant in a timely manner.
2.Petitioner seeks an off-premise beer and wine permit for the subject location of 697
Fairview Road, Simpsonville, South Carolina. Petitioner operates a convenience store at that
location.
3.The Petitioner purchased the subject location on November 18, 2002 from Bi-Lo,
LLC. Prior to that date, Bi-Lo, LLC had operated a convenience store under the trade name Golden
Gallon at the location, which had been licensed with an off-premises beer and wine permit since
2001.
4.The Petitioner applied for an off-premises beer and wine permit for the subject
location on November 25, 2002. Petitioner received a temporary permit pending review by DOR.
The temporary permit expires on March 25, 2003.
5.In its agency transmittal document, DOR stated that, based on the Petitioner’s
application and the investigation conducted by South Carolina Law Enforcement Division
(“SLED”), the Petitioner meets all statutory requirements for an off-premises beer and wine permit.
6.The Protestant, R.H. Patterson, Sr. (“Protestant”), sent a document to DOR protesting
Petitioner’s application on the grounds of overcrowding of alcohol licensing in the community and
traffic and health conditions.
7.The Protestant testified at the hearing before the ALJD that he is concerned about
permitting the subject location because there are already too many stations in the State of South
Carolina selling alcohol for the number of police and SLED officers in the State to effectively patrol
and enforce the laws. The Protestant expressed concerns regarding the way alcohol is handled in
this State, and he emphasized that he is interested in the prevention of crime and alcohol abuse. The
Protestant presented two witnesses who concurred with his views.
8.The Petitioner presented the testimony of Tracey Lilly, the Director of Human
Resources for Spinx Company, that to her knowledge there have been no problems with criminal
activity at the subject location. She testified that Petitioner checks the criminal backgrounds of all
of its employees working in its convenience stores.
9.The Petitioner also presented the testimony of Andy Hubner, the Division Manager
of the subject location and Director of Training. Mr. Hubner testified that all new employees of
Petitioner go through an extensive orientation and testing program regarding the sale of alcohol
before they are placed in any of Petitioner’s stores. Mr. Hubner testified that there have been no
problems with any criminal activity at the subject location. He testified that the subject location is
on a four-lane road, and that the surrounding area is all commercial. He testified that there is no
other business selling alcohol at the intersection where this store is located. He stated that the
closest place that sells beer and wine is a Publix grocery store, and that there is no overcrowding of
alcohol permits or licenses in that area. He testified that the Petitioner is not conducting any new
type of business than the type of business that was conducted when the subject location was a
Golden Gallon Store; thus, Petitioner is not increasing traffic in the vicinity. He further testified that
the subject location has received no citations from the State regarding its quality of food.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer and wine.
2.The only issue in dispute is the location. S.C. Code Ann. § 61-4-520 (Supp. 2002),
which sets forth the requirements for the issuance of a beer and wine permit, provides in part:
No permit authorizing the sale of beer or wine may be issued unless . . .
(6) The location of the proposed place of business of the
applicant is in the opinion of the department a proper one.
(7)The department may consider, among other factors, as indications of
unsuitable location, the proximity to residences, schools, playgrounds and
churches.
S.C. Code Ann. § 61-4-520 (6), (7) (Supp. 2002).
3.Although “proper location” is not statutorily defined, broad discretion is vested in
the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
278 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a 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 on the community within which
it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse
to the location may be considered. The proximity of a location to a church, school or residences is
a proper ground by itself upon which the location may be found to be unsuitable and a permit
denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can
consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC
Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
4.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).
5.An important factor is whether the location has in the recent past been permitted and
whether the location is now more or less suitable than in the past. Taylor v. Lewis, 261 S.C. 168,
198 S.E.2d 801 (1973).
6.The subject location has had an off-premises beer and wine permit since 2001, and
the location has operated as a convenience store since 2001. The location is no less suitable now
than it was in 2001.
7.Considering all relevant factors, I find that the proposed location is a proper location.
S.C. Code Ann. § 61-4-520(6) (Supp. 2002).
8.The Petitioner meets the requirements for the issuance of a beer and wine permit.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for an off-premises beer and
wine permit for the location at 697 Fairview Road, Simpsonville, South Carolina, is granted;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
March 21, 2003
Columbia, South Carolina |
