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:
King’s Convenience Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
King’s Convenience Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
06-ALJ-17-0316-CC

APPEARANCES:
For the Petitioner:
Byron Gipson, Esquire

For the Respondent:
Harry Hancock, Esquire

For the Protestant:
Pro Se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005), 61-2-260 (Supp. 2005), and 61-4-525 (Supp. 2005) for a contested case hearing. King’s Convenience Store (Petitioner), seeks an on-premises beer and wine permit for its location at 880 Aletha Street, Orangeburg, South Carolina (location). Detective Michael A. Adams (Protestant) filed a protest to the application with the South Carolina Department of Revenue (Department) and appeared at the hearing. Because of the protest, the hearing was required.

A hearing in this matter was held before me on June 20, 2006 at the ALC in Columbia, South Carolina. Both parties and the Protestant appeared at the hearing. Evidence was introduced and testimony was taken. After carefully weighing all the evidence, I find and conclude that Petitioner’s request for an on-premises beer and wine permit is denied.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and further taking into consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was timely given to all the parties and the Protestant.

2. Denise King (Applicant) seeks an on-premises beer and wine permit for King’s Convenience Store, located at 880 Aletha Street, Orangeburg, South Carolina, which is inside the city limits in Orangeburg County.

3. Ms. King is over the age of twenty-one (21). She is a legal resident of the State of South Carolina and has maintained her principal place of abode in this State for at least thirty (30) days prior to making this application. Ms. King is of good moral character and has never held a permit or license for the sale of beer, wine, or liquor.

4. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

5. The location is adjacent to an auto repair garage at the corner of Aletha and Whaley Streets. Another business, Orangeburg Milling, is located directly across the street from the location.

6. The inside of the location is separated into two large rooms by a brick wall.[1] The front room of the building operates as a convenience store, where items such as chips, cookies, candies, and drinks are sold. A counter, which faces the convenience store area, is located at the front of the building next to the entrance. The back room of the building operates as a pool hall. There are two pool tables in this area, as well as a jukebox. Applicant seeks a permit to sell beer and wine for on-premises consumption in the pool room. There will be no live music at the location.

7. Applicant and her husband have made several repairs and renovations on the inside of the building, including repairing the ceilings and wiring.

8. The location opened for business in November 2005, and has operated without incident since that time. Its hours of operation vary. Normally, the location is open from 12:00 p.m. (noon) until 9:00 or 10:00 p.m. However, if Applicant receives a permit for the sale of beer and wine for on-premises consumption, she intends to stay open as late as 1:00 a.m.

9. Ms. King is the sole employee at the location. However, her niece, who is over the age of twenty-one (21), may also work there in the future. Ms. King and her husband live approximately three (3) blocks from the location.

10. Children purchase items inside the convenience store and, on occasion, children from the area congregate outside the location. Ms. King’s children are also present at times at the location. Because children are present during the day, Applicant only intends to serve beer and wine between the hours of 5:00 p.m. and 1:00 a.m.

11. Parking at the location is very limited. There is little room for cars to park in front of the building without blocking the street.

12. The outside of the location is lighted at night.

13. Applicant intends to hire a security guard if a permit is granted.

14. The location is in a primarily residential area. There is also a church located around the corner from the location, approximately one half block away. However, the church did not protest the application.

15. Protestant Michael A. Adams, Chief of Detectives for the Orangeburg Department of Public Safety, filed a protest to the application. Protestant’s concerns include the fact that the location is in a primarily residential area that is economically depressed, the proximity of the location to a church, and the limited parking at the location. Protestant also is concerned that the design of the inside of the location will not facilitate on-premises beer and wine consumption. Protestant’s major concern, however, is the level of criminal activity in the area and the effect that it has on law enforcement.

16. I find that the proposed location is not suitable for the issuance of an on-premises beer and wine permit.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2005) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2005) sets forth the requirements for the issuance of a beer and wine permit.

4. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); see also Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154 (1996).

6. Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). The determination of suitability of 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates any adverse effect the proposed location will have on the community. Palmer, supra. It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, in considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Id.

7. Unless there is 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).

8. Permits and licenses issued by this State for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the State’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

9. I find and conclude that the location is not suitable for an on-premises beer and wine permit and that it would have an adverse impact on the surrounding community. The location is in a primarily residential area and there is very limited parking at the location. Furthermore, children frequent the location and sometimes congregate outside of the building. Also, I am concerned that the design of the store will make it difficult for Ms. King and other employees to closely monitor both the convenience store area and pool hall area, as well as the outside, all at the same time. Accordingly, I find that the location is not suitable for an on-premises beer and wine permit at this location and that the application must therefore be denied.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the application for an on-premises beer and wine permit by Denise King on behalf of King’s Convenience Store located at 880 Aletha Street, Orangeburg, South Carolina is DENIED.

AND IT IS SO ORDERED.

__________________________________

Marvin F. Kittrell

July 7, 2006 Chief Administrative Law Judge

Columbia, South Carolina



[1] There is also a small office to the rear left inside the location next to the store counter.


Brown Bldg.

 

 

 

 

 

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