South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Jimmy N. Still, d/b/a Still's Convenience & Games vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Jimmy N. Still, d/b/a Still's Convenience & Games
6038 Highway 64, Barnwell, SC 29812

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
00-ALJ-17-0431-CC

APPEARANCES:
Kenneth E. Allen
Attorney for Petitioner

James Creech
Pro se Protestant, Spokesperson
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1999) for a hearing on the application of Petitioner Jimmy Still. Petitioner seeks an on-premises beer and wine permit for the convenience store and game room located at 6038 Highway 64, Barnwell, South Carolina.

After timely notice to the parties and the Protestants, a hearing was held on September 21, 2000, at the Administrative Law Judge Division in Columbia, South Carolina. At the hearing, Protestants moved to intervene, but were denied leave to intervene because they did not present good cause for their failure to timely move to intervene before hearing pursuant to ALJD Rule 20.

The issues considered at the hearing were: (1) Petitioner's eligibility to hold a beer and wine permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The application for the on-premises beer and wine permit is hereby denied.

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. Petitioner seeks an on-premises beer and wine permit for a convenience store and game room located at 6038 Highway 64, Barnwell, South Carolina. The business is situated on the edge of a fifty-nine-acre tract in a rural area at the juncture of Highway 64, a two-lane, major thoroughfare, and Lebanon Road, four miles from the town of Barnwell.

2. Petitioner owns the newly constructed building that houses the convenience store. The building was completed in June of 2000 and has an attached but separate apartment where Petitioner's brother resides.

3. Businesses housed in a different building no longer in existence at this location have been licensed at various times in the past for a period totaling approximately ten nonconsecutive years.

4. Petitioner is of good moral character. The State Law Enforcement Division completed a criminal background investigation of Petitioner. The SLED report revealed no criminal violations, and the record before this tribunal does not indicate that Petitioner has engaged in acts or conduct implying the absence of good moral character.

5. Petitioner is at least twenty-one years of age, a U.S. citizen, and a citizen of the State of South Carolina. Furthermore, Petitioner has maintained his principal residence in the State for at least thirty days prior to the date of making application for an on-premises beer and wine permit.

6. Petitioner has not had a beer and wine permit or alcoholic beverage license revoked within two years of the date of his application.

7. Notice of the application appeared in The People Sentinel, a newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks, and notice was posted at the proposed location for fifteen days.

8. The nearest church is approximately 1,600 feet away from the proposed location; and, the nearest residence is approximately 1,300 feet away. However, the proposed location is situated in the midst of a rural residential community; approximately twenty residents appeared at the hearing to protest Petitioner's application. There are no other commercial establishments in the area. Further, issuance of a permit to Petitioner would apparently be the first commercial introduction of alcohol into the community. Additionally, minors frequent the location and avail themselves of the game room.

9. Protestants oppose the issuance of the permit at issue primarily because: (1) minors frequent the convenience store and game room, (2) patrons of the location park on the shoulder of the highway immediately in front of the location of the building, resulting in patrons backing directly into the highway when leaving in their vehicles, and (3) the consumption of alcohol on premises would potentially create highway hazards from patrons who drink and drive, especially since Highway 64 is a curvy thoroughfare.

10. The Department does not oppose Petitioner's application and would have issued the permit but for the protests.

CONCLUSIONS OF LAW AND DISCUSSION

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

1. S.C. Code Ann. section 61-2-260 (Supp. 1999) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.

2. S.C. Code Ann. section 61-4-520 (Supp. 1999) 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 suitable one.

3. Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge Division in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad, but not unbridled, discretion. See Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4. The determination of the suitability of a location is not necessarily a function of geography alone. It involves an infinite variety of considerations related to the nature and operations 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. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

5. In considering the nature and operations of the proposed location, I find it unsuitable for the issuance of an on-premises beer and wine permit. Minors patronize this location regularly, especially the game room. On-premises consumption is distinctively different from "cash and carry" for off-premises consumption. Additionally, it is beyond argument that the character and impact of on-premises beer and wine consumption at an establishment devoted to the service of full meals is clearly different from one where such consumption occurs without the service of meals. As such, the character and business activity associated with the on-premises consumption of beer and wine at the proposed location is not conducive to a harmonious coexistence with its nature as a place where minors frequent located in the midst of a residential community. With on-premises consumption and unrestricted hours of consumption, the convenience store takes on the appearance of a "juke joint" or "bar", which is incompatible with the neighboring community of residences.

I find that the proposed location is suitable for an off-premises permit, even though it is not suitable for an on-premises permit. By comparison, an off-premises permit would not create any apparent problems or have an adverse impact on the community.

6. Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an off-premises beer and wine permit. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. .

ORDER

Based upon the Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the on-premises permit applied for by Petitioner is denied. While this tribunal denies the on-premises permit requested by Petitioner, it finds the proposed location suitable for an off-premises beer and wine permit should Petitioner care to apply for one.

AND IT IS SO ORDERED.



______________________________

JOHN D. GEATHERS

Administrative Law Judge

October 13, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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