ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter 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 AM-PM Food Store, Inc. #2 seeks an off-premises beer and wine permit for its convenience store, AM-PM Food Store, Inc. #2, located at 1108 Hampton Avenue in Aiken, South Carolina. Respondent South Carolina Department of Revenue (Department) found that Petitioner met the statutory requirements for the issuance of an off-premises beer and wine permit, but denied Petitioner’s application because of several protests filed by nearby residents regarding the suitability of the proposed location.
After timely notice to the parties and the protestants, a hearing of this case was held on October 13, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. The only protestant of record to appear at the hearing was Ronnie West, who appeared both in his individual capacity and as president of the Kennedy Kolony Neighborhood Association. Based upon the evidence presented regarding the suitability of the proposed location and upon the applicable law, I find that Petitioner’s application for a 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:
1. On May 2, 2005, Inder Preet submitted an application on behalf of AM-PM Food Store, Inc. #2 to the Department for an off-premises beer and wine permit for a convenience store located at 1108 Hampton Avenue in Aiken, 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 Aiken Standard, a newspaper published and circulated in Aiken, South Carolina, and proper notice of the application was posted at the proposed location for fifteen days.
3. AM-PM Food Store, Inc. #2, which Ms. Preet co-owns with her father, Rana Mander, is a South Carolina corporation, which was incorporated on January 28, 2004, and which is currently in good standing with the South Carolina Secretary of State. While he does not have an ownership interest in AM-PM Food Store, Inc. #2, Ms. Preet’s husband, Harmit Sohal, will also be involved in the day-to-day operations of the business.
4. Ms. Preet, Mr. Mander, and Mr. Sohal are all over twenty-one years of age, and there is no evidence in the record to suggest that they have any delinquent state or federal taxes or have engaged in any acts or conduct implying the absence of good moral character.
5. Petitioner’s convenience store is located at the corner of Hampton Avenue and Terry Drive in Aiken, South Carolina. The area surrounding the convenience store is primarily residential, although there are several other businesses on Hampton Avenue within the general vicinity of the store. Most of the nearby neighborhoods are located on residential streets at least one block off of Hampton Avenue, and the nearest residence to the proposed location is approximately four hundred feet away from the store. While there are no churches, schools, or playgrounds within close proximity to the location, there is one church located on Hampton Avenue approximately two blocks from the location and an elementary school within a quarter mile of the store.
6. The building housing the store was constructed for use as a convenience store in 1976, and has been operated as such for its entire existence. Over these thirty years, the location has been operated by six or seven tenants, each of whom has held an off-premises beer and wine permit for the store. However, the location had been vacant since 2002 when Petitioner began operating its convenience store at the location in June 2005. A portion of the building adjoining Petitioner’s store remains vacant, but is under lease to be used as a bakery.
7. During the four months it has been in business, Petitioner has operated the location as a normal, neighborhood convenience store, open seven days a week between seven o’clock in the morning and eleven thirty in the evening. Ms. Preet is the primary day-to-day manager of the store, and, with her father, she has previously operated convenience stores with beer and wine permits in Lancaster, South Carolina, and McCormick, South Carolina. During its operations at the location, Petitioner has not experienced any problems with loitering and has not had any incidents requiring law enforcement involvement.
8. Protestant Ronnie West, the president of the neighborhood association for Kennedy Kolony, a neighborhood located approximately one-half mile from Petitioner’s store, opposed Petitioner’s application for an off-premises beer and wine permit. Mr. West described problems that had occurred during the operations of the last convenience store at the location, including problems with loitering, public drinking, drug activity, and littering. Mr. West stated his concern that, if licensed for the sale of beer and wine, Petitioner’s store would have a similar adverse impact on nearby residential communities.
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.
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 making a decision in this matter, this Court 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 proposed location is unsuitable for Petitioner’s convenience store or that the issuance of the permit in question to Petitioner would create problems in or have an adverse impact upon the surrounding community. Petitioner’s convenience store will only offer beer and wine for off-premises consumption, and thus will not create the sort of problems associated with establishments that allow the consumption of alcohol on the premises. Further, the persons responsible for the day-to-day operations of Petitioner’s convenience store have a history of successfully operating similar convenience stores with off-premises beer and wine permits in other South Carolina cities. And, while this Court is mindful of the problems that resulted from the operations of a prior convenience store at the location, the record does not reflect that those problems were related to the location itself—which has been operated as a convenience store selling beer and wine for nearly thirty years—but rather suggests that those problems were the result of poor management by that particular convenience store operation. Here, the principals of Petitioner’s convenience store have indicated a commitment to operating their store in an orderly, lawful fashion, both through words such as their stated willingness to condition their permit upon not allowing loitering and through actions such as installing flood lights around the parking lot. Therefore, while this Court is respectful of the protestant’s opposition to the requested permit and his concerns regarding the suitability of the proposed location for Petitioner’s store, there is not sufficient evidence in the record to warrant the denial of Petitioner’s application based upon that opposition.
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 off-premises beer and wine permit for the premises located at 1108 Hampton Avenue in Aiken, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
November 2, 2005
Columbia, South Carolina
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