South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Brenda L. Jones, d/b/a Gregg Street Grocery vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Brenda L. Jones, d/b/a Gregg Street Grocery
1309 Gregg Street, Columbia, South Carolina

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0291-CC

APPEARANCES:
Walter B. Todd, Jr., Esquire
For Petitioner

Lynn M. Baker, Esquire
For Respondent

Reverend Michael Ross
New Ebenezer Baptist Church
 

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 Brenda L. Jones seeks an on-premises beer and wine permit for her convenience store, Gregg Street Grocery, located at 1309 Gregg Street in Columbia, South Carolina. After Petitioner agreed to a voluntary restriction upon her license limiting her son’s involvement in the business, Respondent South Carolina Department of Revenue (Department) found that Petitioner met all of the statutory requirements for the issuance of the requested permit and would have granted the permit but for the protest filed by Reverend Michael Ross on behalf of the New Ebenezer Baptist Church regarding the suitability of the proposed location.

After timely notice to the parties and the protestant, a hearing of this case was held on September 21, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the testimony presented at the hearing 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:

Application

1. On March 28, 2005, Petitioner Brenda L. Jones submitted an application to the Department for an on-premises beer and wine permit for the Gregg Street Grocery, a convenience store and grill, located at 1309 Gregg Street in Columbia, 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 Columbia Star, a newspaper published and circulated in Columbia, South Carolina, and proper notice of the application was posted at the proposed location for fifteen days.

Suitability of Location/Business

3. The Gregg Street Grocery is a business that includes aspects of both a convenience store and a restaurant. The store sells cigarettes, pre-packaged snacks, soft drinks, and other familiar convenience store items and prepares hot food such as hot dogs, hamburgers, and chicken for consumption on the premises. Accordingly, the store not only contains shelves for its retail items, but a dining area equipped with three tables with chairs, three bar stools, and a pool table. Prior to 2003, the store also sold beer and wine for both on-premises and off-premises consumption.

4. According to the testimony of the current owner of the property, whose family has held the property since the 1920s, the location of the Gregg Street Grocery has been used for similar retail establishments, including establishments licensed for the sale of beer and wine, and has been operated in a similar fashion since the early 1960s, and perhaps since as early as the 1930s. The Department’s electronic records indicate that the location was licensed for the sale of beer and wine for on-premises consumption between April 1983 and May 2003.

5. The Gregg Street Grocery is located in a mixed residential and commercial area in downtown Columbia. Several commercial and governmental buildings are located within approximately five hundred feet of the establishment, including a medical office, a law office, an office furniture store, and offices for the South Carolina Department of Probation, Parole, and Pardon Services. There are also five residences within a few hundred feet of the location and the facilities of the New Ebenezer Baptist Church are situated less than three hundred feet away from the location. While the New Ebenezer Baptist Church has been located in the same general area for the past seventy years, the portions of the church that are in proximity to Gregg Street and the proposed location were constructed more recently, including a new sanctuary built in 1987 and an education center constructed approximately five or six years ago.

Suitability of Applicant

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 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. Petitioner has no 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 that she held suspended or revoked, and the record does not reveal that Petitioner has committed any violations of South Carolina’s alcoholic beverage laws.

8. Petitioner operated the Gregg Street Grocery, with a permit to sell beer and wine for on-premises consumption, between 1993 and 2003, when she transferred the business to her son, Anthony T. Jones, as she recovered from a serious illness. However, when her son sought a beer and wine permit for the grocery in his own name, his application was denied, largely because of his criminal record and his failure to disclose that record on his application. See Jones v. S.C. Dep’t of Revenue, Docket No. 04-ALJ-17-0057-CC (S.C. Admin. Law Ct. May 3, 2004). Petitioner has recovered from her illness and resumed control of the business, and now seeks to again obtain a beer and wine permit for the business. As part of her application, Petitioner voluntarily agreed to a restriction upon her beer and wine permit that would preclude her son from being on the store’s premises during business hours and from having a financial interest in the store.

Opposition to Petitioner’s Application

9. Reverend Michael Ross testified at the hearing on behalf of the New Ebenezer Baptist Church to express opposition to the issuance of a beer and wine permit to Petitioner for the Gregg Street Grocery. In particular, Reverend Ross stated his opinion that the licensure of the grocery for alcohol sales would promote an unhealthy lifestyle that would be damaging to the surrounding community and to his nearby church. He raised further concerns regarding the potential for loitering at the location, inadequate parking around the store, and increased vandalism and burglary at his church as a result of beer and wine sales at the store. However, in his testimony, Reverend Ross did not describe any specific problems that either his church or the surrounding community had experienced as a result of the grocery’s past operations at the location with a beer and wine permit. Similarly, Petitioner testified that, during the ten years she had previously operated the store with a beer and wine permit, she did not have any problems with her customers and the store did not cause any problems for the surrounding community.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

Jurisdiction and Background

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” location. See id. § 61-4-520(6).

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 making a decision in this matter, this tribunal 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 location of the Gregg Street Grocery is unsuitable for a convenience store and grill selling beer and wine for on-premises consumption or that the issuance of the requested permit would create problems in or have an adverse impact upon the surrounding community. Petitioner has operated the Gregg Street Grocery at the location in question since 1993, and similar establishments have operated at the location for over forty years, and there is no evidence in the record to suggest that the location has ever been operated in a manner detrimental to the surrounding community. This history demonstrates that Petitioner is capable of operating her grocery with a beer and wine permit in a responsible manner and in harmony with the surrounding community. Therefore, while this tribunal acknowledges the concerns raised by Reverend Ross and respects his right to state those concerns before this Court, those speculative concerns do not constitute a sufficient basis upon which to deny Petitioner’s application, particularly in light of the concrete evidence of her history of successfully operating the location in question.

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 1309 Gregg Street in Columbia, South Carolina.

AND IT IS SO ORDERED.

 

 

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

 

October 11, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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