ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2000) and S.C. Code Ann. § 1-23-310 (Supp.
2000) for a hearing on the application of Petitioner Amerada Hess Corp., d/b/a Hess Mart, Inc. (Hess). Petitioner seeks an
off-premise beer and wine permit for a convenience store located at 101 Broad Street, Sumter, South Carolina 29150.
Upon receipt of written protest to the issuance of the permit by members of the Saint Mark's United Methodist Church,
Respondent South Carolina Department of Revenue (DOR) transmitted the case to the Administrative Law Judge Division
(ALJD) for a hearing. DOR's Agency Transmittal indicated that the applicant had met all of the requirements for the
issuance of an off-premise beer and wine permit, and but for the protest regarding the suitability of the proposed location, it
would have issued the permit. DOR had no additional information regarding the suitability of the location. DOR does not
oppose Petitioner's application, and this tribunal granted DOR's Motion to be Excused from appearing at the hearing.
After timely notice to the parties and protestants, a hearing was held on December 4, 2000, at the ALJD in Columbia,
South Carolina.
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, Amerada Hess Corporation, d/b/a Hess Mart, Inc. seeks an off-premises beer and wine permit for the
premises located at 101 Broad Street, Sumter, South Carolina.
2. There is an existing Hess convenience store located at 101 Broad Street, Sumter, South Carolina that has been in that
location for over twenty (20) years; however, Hess plans to construct an updated convenience store at the same location.
3. Neither the existing convenience store nor the proposed location have been previously licensed for the sale of beer and
wine.
4. The proposed location is within the city limits of Sumter, South Carolina and is located at the intersection of Church
Street and Broad Street.
5. Saint Mark's United Methodist Church is located on the opposite corner of Church Street and Broad Street and is
approximately two hundred seventy (270) feet from the Hess station.
6. There are other businesses in the surrounding area, particularly on Broad Street, that are licensed to sell beer, wine
and/or liquor.
7. Petitioner has met all statutory requirements, and but for the protest, DOR would have issued the permit.
8. DOR does not oppose the issuance of the permit.
9. Bruce Arthur Sayer has been the minister of Saint Mark's United Methodist Church for about eighteen (18) months and
lives at the Church's parsonage. He testified that the Church's primary entrance is the side entrance and is directly across
the street from the convenience store. The minister indicated that he is concerned about the possible increase of traffic and
noise that may result from the sell of alcohol at the Hess station. He also objects to beer advertisements that could be seen
from the Church. Mr. Sayer stated that he and the members of the church are also concerned about the influence the sale
of beer and wine at the proposed location may have on the youth of the Church. On cross-examination the minister stated
that he had no personal knowledge of any specific problems at other local churches due to nearby alcohol sales.
10. Eugenia Lynn Epting is a long standing member of Saint Mark's Untied Methodist Church and testified at the hearing.
She stated that the neighborhood behind the Church is residential one and, she is concerned that there would be an increase
in vehicular and pedestrian traffic if Hess is allowed to sell alcohol. She also testified that the existing Hess station has
inadequate parking spaces. Ms. Epting testified that the intersection between the Church and store is heavily traveled and
is the ambulance route for the nearby hospital. She is concerned that patrons of the convenience store will buy alcohol at
the store and consume the alcohol on the Church property while services are not in progress. Ms. Epting stated on cross
examination that she has not witnessed patrons from Hess on the Church property recently.
11. Martha McElveen Horne is the city attorney for Sumter, South Carolina. Ms. Horne testified that the City of Sumter
opposes the issuance of the permit to Hess. She stated that convenience stores that sell alcohol tend to contribute to an
increase in traffic and simple crimes, such as public drunkenness, in the area. A concern of Mr. Horne's is that Broad
Street is the primary emergency route for Tuomey Regional Medical Center. She informed this tribunal that there are
several other businesses on Broad Street that sell alcohol. According to Ms. Horne, the sell of single bottles of alcohol, as
opposed to the sell of a six pack of alcohol or more, may encourage consumption of alcohol at nearby vacant properties.
She testified that she had no specific information of problems at other churches in Sumter due to their proximity to alcohol
licensed convenience stores. Ms. Horne stated that some concerns may be alleviated by the sale of alcohol in six packs as
opposed to single bottles.
12. Brad Adams has been an employee with Hess for ten years and is the division manager for South Carolina and
northern Florida. The Hess station in Sumter is within the area of his responsibility. Mr. Adams testified at the hearing
that the company's policy is one of no tolerance for the sell of alcohol and tobacco to underage customers. The cashiers
require identification of anyone attempting to purchase alcohol who appears to be under the age of thirty-five (35) years
old. There are signs in the Hess stores, including the Sumter location, that serve as reminders to cashiers to require such
identification. Furthermore, the cashiers are trained by the South Carolina Law Enforcement Division to facilitate the sell
of alcohol in accordance with South Carolina laws. Mr. Adams testified that the proposed Hess store will be constructed so
that the cashier will have a clear view of the parking lot at the store. Cashiers are instructed to call the police if there is any
loitering on the property. He stated that the City of Sumter has approved Hess's plans for remodeling and upgrading the
convenience store. There will be no sitting area or entertainment games to play at the store. Mr. Adams testified that the
proposed store will have assigned spaces for parking which the existing location does not have.
13. William Cook, Jr. is a resident of Florida and is a permanent engineer with the Amerada Hess Corporation. His area
of responsibility includes South Carolina and Florida. He testified at the hearing that several of Hess's competitors sell
alcohol and are in the nearby area of the Church. Mr. Cook took the position that Hess needs to sell alcohol in order to
compete with nearby convenience stores. He added that Hess is concerned with public safety at all times and has adequate
lighting inside and outside the convenience store. Mr. Cook testified that the parking issue at the store was considered by
the City of Sumter when it approved the remodeling plan.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the ALJD to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the ALJD the responsibilities to determine contested matters
governing beer and wine sales.
3. S.C. Code Ann. § 61-4-520 (Supp. 2000) provides the statutory requirements for the issuance of an off-premise beer
and wine permit. It provides in part that the location must be proper.
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in
determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118
(1981).
5. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed
business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina
ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may
involve 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).
7. While proximity of a church to a proposed location by itself may be adequate grounds for denial of a beer and wine
permit, there is no minimum distance requirement. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705
(Ct. App. 1984).
8. The existence of another business in close proximity which is licensed to sell beer and wine is evidence of suitability
of the proposed location. Taylor v. Lewis, 198 S.E.2d at 802 (1973).
9. Without sufficient evidence of an adverse impact on the community, the 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 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
10. In considering suitability of location, it is relevant to determine whether the testimony in opposition to the granting of
a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 198 S.E.2d at 802 (1973).
11. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights of property, but are rather
privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and
conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also
authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or
license. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
12. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and
case law. This tribunal acknowledges the concerns of the Protestants; however, with the restrictions and conditions
imposed by this Order the proposed location is not unsuitable, and the issuance of an off-premise beer and wine permit
should not create problems or have an adverse impact on the community. Therefore, I find that the Petitioner's application
for an off-premise beer and wine permit should be granted with the restrictions and conditions set forth hereafter.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that Petitioner's application for an off-premises beer and wine permit for 101 Broad Street, Sumter, South
Carolina is granted, with the following restrictions and conditions:
1. The Petitioner or its employees shall prohibit littering, loitering and the consumption of beer or wine in the parking lot
area of the proposed location.
2. The Petitioner or its employees shall take necessary measures to ensure that the parking lot will be properly supervised
in order to preclude littering, loitering and the consumption of alcohol on the convenience store site.
3. There shall be no outside banners or signs advertising the sale of alcoholic beverages.
4. No single serving of beer shall be sold. Only packages of six or more beers shall be sold at the location.
5. No beer or wine products shall be visible to the unaided eye at a distance of one hundred (100) feet or more from the
entrance of the Hess station.
IT IS FURTHER ORDERED that a violation of any one of the above conditions is considered a violation against the
permit and may result in a fine, suspension, or revocation of the permit.
IT IS FURTHER ORDERED that DOR issue the off-premise permit upon payment of the required fees and costs by the
applicant.
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
February 13, 2001
Columbia, South Carolina |
