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. 2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code
Ann. §§ 1-23-310 et seq. (2005) for a contested case hearing.
Petitioner Comer’s Full Service and Grill, Inc., seeks an on-premises beer and wine
permit for its convenience store, gas and service station, and grill located at
5425 Wylie Avenue in Hickory Grove, South Carolina. Respondent South Carolina
Department of Revenue (Department) denied Petitioner’s application because of
the protest filed against the application on petitions signed by a total of 144
individuals. These petitions raised
concerns regarding the suitability of the location of Petitioner’s store for
the sale of beer and wine for on-premises consumption. After timely notice to
the parties and the protestants, a hearing of this case was held on Friday,
January 13, 2006, 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 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 June 9, 2005, Wayne Hills and Thea Hills submitted an application to
the Department on behalf of their corporation, Comer’s Full Service and Grill,
Inc., for an on-premises beer and wine permit for their convenience store, gas
and service station, and grill located at 5425 Wylie Avenue in Hickory Grove,
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 Herald, a newspaper published in Rock Hill, South Carolina,
and circulated in York County, South Carolina, and proper notice of the
application was posted at the proposed location for fifteen days.
3. The
principals of Petitioner Comer’s Full Service and Grill, Inc., Wayne Hills and
Thea Hills, are over twenty-one years of age, have no delinquent state or
federal taxes, and are legal residents of the United States and the State of
South Carolina. Further, Wayne Hills and Thea Hills reside and maintain their
principal place of abode in South Carolina, and did so for at least thirty days
prior to filing Petitioner’s application for a beer and wine permit.
4. Wayne
Hills and Thea Hills have no criminal records and there is no evidence in the
record to suggest that they have engaged in acts or conduct implying the
absence of good moral character. Further, neither Mr. Hills nor Ms. Hills has
had a beer and wine permit suspended or revoked, and the record does not reveal
that either of them has committed any violations of South Carolina’s alcoholic
beverage laws.
5. Comer’s
Full Service and Grill operates as a convenience store, retailing normal
grocery items; a gas and service station, selling gasoline and repairing cars;
and a grill, preparing meals for lunch with seating for six customers. Comer’s
has been operated in a similar fashion at the location in question for some
twenty years, with such operations including the sale of beer and wine for
off-premises consumption from the convenience store portion of the business.
While the normal daily hours of operation for Comer’s are 5 a.m. to 9 p.m., the
grill portion of the establishment is focused on serving lunch and closes daily
at 2 p.m. Mr. Hills and Ms. Hills seek an on-premises beer and wine permit so
that they can offer beer and wine for sale with the meals they serve during
their lunch operations at the grill, in addition to selling beer and wine for
off-premises consumption from the convenience store.
6. Comer’s
Full Service and Grill is located along Highway 211 in Hickory Grove, South
Carolina, a small town located in York County. There are no churches, schools,
playgrounds, or residences within close proximity to Comer’s. While there are
several residences in the general vicinity of the location, the nearest
residences are approximately one-tenth of a mile from the location. Similarly,
the nearest church to Comer’s is a Church of God located some six-tenths of a
mile away from the location; the nearest playground is a ball park located
about three-fourths of a mile away; and the nearest school is an elementary
school located over a mile away from Comer’s.
7. At
the hearing of this matter, Misty Lane testified regarding her opposition to
Petitioner’s application for an on-premises beer and wine permit for the
proposed location. In particular, Ms. Lane was concerned with the proximity of
the location to two churches, a school, a ball park, and a fire station in
Hickory Grove, as well as with the possibility that Petitioner’s on-premises
sale of beer and wine would lead to an increased problem with drunk driving on
the roads in her community. Further, Ms. Lane alleged that certain disorderly
conduct had occurred at Comer’s in recent months, including an incident
involving the consumption of alcohol by both customers and employees of Comer’s
on its premises and an incident involving the playing of loud music at Comer’s.
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. 2005), S.C. Code Ann. §
1-23-600(B) (Supp. 2005), 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. 2005) 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. 2005)
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. 2005) 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, service station, 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 Comer’s will offer beer and wine for both
on-premises and off-premises consumption, Comer’s will only serve beer and wine
on-premises as complement to its existing food service and will only sell beer
and wine at retail as part of its 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 Ms. Lane’s opposition to the requested permit and
acknowledges her concerns regarding drunk driving along the roads in her
community. Nevertheless, the Court finds that the Comer’s location is suitable
for the sale of beer and wine for on-premises consumption. In short,
Petitioner is currently operating a legitimate convenience store, service
station, and grill at the location, and the evidence in the record suggests that
Petitioner will continue to operate the business responsibly after the addition
of the sale of beer and wine for on-premises consumption with meals.
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
5425 Wylie Avenue in Hickory Grove, South Carolina.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201-3731
January 30, 2006
Columbia, South Carolina
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