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
Kenneth M. Marion seeks an on-premises beer and wine permit for his grocery
store and grill, known as Stacey’s Kitchen, located at 46 America Street in
Charleston, South Carolina. Respondent South Carolina Department of Revenue
(Department) determined that Petitioner met the statutory requirements for the
issuance of the permit in question, but denied his application because of a
protest filed by the Charleston Police Department regarding the suitability of
the proposed location for Petitioner’s store and grill. After timely notice to
the parties and protestant, a hearing of this case was held on November 16,
2005, at the South Carolina Administrative Law Court in Columbia, South
Carolina. Based upon the evidence presented regarding the suitability of the
proposed location 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:
1. On
or about August 2, 2005, Petitioner Kenneth M. Marion submitted an application
to the Department for an on-premises beer and wine permit for his grocery store
and grill known as Stacey’s Kitchen located at 46 America Street in Charleston,
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 Post and Courier, a newspaper published and circulated in
Charleston, South Carolina, and proper notice of the application was posted at
the proposed location for fifteen days.
3. 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 his principal place of abode in South
Carolina, and did so for at least thirty days prior to making his application
for a beer and wine permit.
4. 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 he held
suspended or revoked, as he has not previously held such a permit, and the
record does not reveal that Petitioner has committed any violations of South
Carolina’s alcoholic beverage laws.
5. Petitioner
grew up in Charleston in the neighborhood surrounding the proposed location.
He left South Carolina to pursue a professional career in engineering,
returning to Charleston in 2001 upon his retirement. In August 2005,
Petitioner opened Stacey’s Kitchen at the location in question. Petitioner’s
establishment is a typical neighborhood convenience store and grill, which
prepares hot food, such as hot dogs, hamburgers, fried chicken, and side dishes,
for carry out dining, and which also sells convenience store items, such as
candy, sodas, and other grocery items. Petitioner’s store has a Grade A food
service permit from the South Carolina Department of Health and Environmental
Control and Petitioner plans to expand his store’s operations to include more
on-premises dining at tables and chairs in the establishment. As a part of his
operations, Petitioner plans to serve beer and wine for on-premises consumption
with the prepared menu items and to sell packaged beer and wine for
off-premises consumption.
6. Petitioner’s
store is located at the corner of America Street and Reid Street in a largely
residential area in downtown Charleston. The nearest church to the location is
the Beulah United Church of Christ, which is located on Reid Street,
approximately 145 feet from the store. There are no other churches, schools,
or playgrounds located within close proximity to Petitioner’s business. The
location was previously licensed for the sale of beer and wine for on-premises
consumption between 1987 and 2001, when the location was operated as a similar
store known as Chuck’s Mini Mart.
7. The
protestant of record, the Charleston Police Department, opposes Petitioner’s
application for an on-premises beer and wine permit because of a crime problem
in the neighborhood surrounding Petitioner’s store. In particular, Corporal
McBrayer, the officer who testified at the hearing on behalf of the police
department, described the blocks surrounding Petitioner’s store as the location
for illegal drug activity and related criminal activity including shootings,
robberies, assaults, thefts, and vandalism. Corporal McBrayer also introduced
police department crime statistics for the surrounding blocks on America and Reid
Streets and played a videotape filmed by certain members of the criminal
element in the area, on which they discussed their criminal activity and
displayed illegal drugs and weapons. Based upon such activity, the Charleston
Police Department concluded that the introduction of the sale of beer and wine at
Petitioner’s store would attract the groups of young men who already loiter in
the area and would, by intoxicating such men, exacerbate the criminal problems
in the area.
Petitioner
acknowledged that the community surrounding his store does suffer from a
problem with crime and that groups of young men do routinely loiter in the
area. However, he stated that he has been diligent in dispersing loiterers
from the property around his store and testified that he intends to operate a
reputable and responsible business that, rather than exacerbating problems in
the surrounding neighborhood, will help to revitalize that community.
Petitioner further testified that the working men and women who generally patronize
his establishment are older and more mature than the young men responsible for
the crime problems in the area.
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 location in question is unsuitable for the sale of
beer and wine for on- and off-premises consumption at Petitioner’s convenience store
and grill or that the issuance of the permit in question would create problems
in or have an adverse impact upon the surrounding community. While Petitioner
will offer beer and wine for both on-premises and off-premises consumption at
his convenience store and grill, Petitioner will only serve beer and wine
on-premises as complement to his existing food service and will only sell beer
and wine at retail as part of his normal convenience store operations. Such sales
of beer and wine would simply not engender the sort of problems created by
establishments such as bars and nightclubs that are primarily, if not solely, dedicated
to the sale and consumption of alcoholic beverages. Cf., e.g., Bergmann
v. City of Melrose, 420 N.W.2d 663, 667 (Minn. 1988) (approving the city
council’s decision to condition a liquor license upon the licensee’s operation
of a “family restaurant” and noting that “[a]n establishment that serves only
liquor is qualitatively different from a restaurant that serves liquor only as
an adjunct to food.”).
This
tribunal is respectful of the Charleston Police Department’s opposition to the
requested permit and acknowledges the evidence it presented to demonstrate the
nature of crime problem affecting the portion of downtown Charleston that
includes Petitioner’s business. And, this tribunal does not wish to minimize
or trivialize the severity of the crime problem in the community surrounding
Petitioner’s store. Nevertheless, the Court finds that the location is not
unsuitable for Petitioner’s proposed operations. Petitioner is currently
operating a legitimate convenience store and grill at the location, and the
evidence in the record suggests that Petitioner will continue to operate his
business responsibly after the addition of the sale of beer and wine. It does
not appear that the operation of such a business at the location will
exacerbate the crime problem in the area. In short, given Petitioner’s
character and the nature of his business operation, it is the conclusion of
this Court that he should be afforded the opportunity to revitalize his
community and reclaim the Charleston he knew as a youth.
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
46 America Street in Charleston, South Carolina.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201-3731
December 15, 2005
Columbia, South Carolina
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