SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2000) for a contested hearing. The Petitioner, Son Hai Nguyen, d/b/a Gee Gee's Food Store, seeks an off-premise beer and wine permit for a location at 1001 Saluda Street, Rock Hill, South Carolina. Respondent South Carolina Department of Revenue filed a Motion to be Excused setting forth that but for the protests of the Protestants, this permit would have been issued. This motion was granted by my Order dated February 7, 2001. A hearing was held before me on April 12, 2001, at the offices of the Administrative Law Judge Division (Division) in Columbia, South Carolina.

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

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestants, and the Department.

2. The Petitioner seeks an off-premise beer and wine permit for Gee Gee's Food Store located at 1001 Saluda Street, Rock Hill, South Carolina.

3. The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2000) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The proposed location is a convenience store that has previously been permitted for the sale of beer and wine off-premises for over twenty-five years. However, the previous permit expired, resulting in the Petitioner's application that is the crux of this case. This store is situated in an area that is both commercial and residential. Additionally, the character of the area has not substantially changed since it was permitted in the past. However, this area has a neighborhood association that is trying to improve its overall character. Furthermore, though the proposed location is situated in an increased crime area, no evidence was presented at the hearing that this specific location has previously created a burden upon law enforcement in the past.

5. The issuance of the permit is being contested by Alicia Sutton, as President of the South Confederate Neighborhood Watch, and Kevin Sutton, as city council member for the political ward in which Gee Gee's Food Store is located. Ms. Sutton's residence is also located behind the proposed location. The Protestants object to the issuance of this permit because they feel the Petitioner has shown disregard for the law, they are trying to improve this neighborhood, and because children walk past the location on their way to school. The main focal point of their argument, however, is that the people in this area are trying to create an "economic stimulus" for this neighborhood to bring in more attractive development, both residential and commercial. The Protestants are also concerned about crime in the area which may be brought about by loitering around the proposed location and trash, in the form of beer bottles and cans, being thrown around the store.

6. On October 17, 2000, the Petitioner was charged with selling alcohol at this location without a beer and wine permit. The disposition of this charge was listed as "pending" on the Department's Criminal History Report, which is a part of the applicant's file. It was unclear what the final disposition of this charge is. At the hearing into this matter, the Petitioner mentioned that he was "found guilty" but through his attorney asserted that the charge was disposed of through "pretrial intervention." If the Petitioner completed the pretrial intervention program successfully and to the approval of the solicitor, there would be no finding of guilt and the Petitioner's record regarding this matter would be destroyed. See S.C. Code Ann. § 17-22-150 (Supp. 2000). Moreover, the Department did not consider his record to be so significant as to deny the issuance of this beer and wine permit. When the Department transmitted this matter to the Administrative Law Judge Division, the Agency Transmittal contained the following language, in relevant part:

Based on the information submitted in the application, and the investigation of the South Carolina State Law Enforcement Division [sic] it appears that the applicant meets all statutory requirements for a beer and wine permit, except for the unanswered question of suitability of location.

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The South Carolina Department of Revenue does not have any relevant information concerning this application other than that included in the file attached to this transmittal.

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Because the Department does not have any additional information on the question that is before the Administrative Law Judge Division, the Department has attached its motion to be excused from participation in the hearing.

Therefore, the Department, which is the governmental body charged with regulating and enforcing violations concerning permits and licenses involving the sale of beer, wine or alcohol, did not find the Petitioner's charge of operating without a permit to be sufficient reason to deny the issuance of this permit. Furthermore, though the Petitioner's actions present material concerns about whether he will lawfully operate this location, I find that the Petitioner is of sufficient moral character to receive a beer and wine permit. ⁽¹⁾

7. The Protestants' arguments appear to be based on a sincere concern for their community. However, though the evidence offered raises "potential" concerns that this business would change the integrity of the vicinity or create an overall adverse impact on the community, the evidence did not establish that the granting of the permit for this location will augment the criminal activity in this area or have an overall adverse impact on the community.

In order to deny this permit, direct evidence of an adverse impact on the community is necessary, particularly in light of the fact that the site of the proposed location has been previously permitted. If that change occurs after the Petitioner receives this permit, the proposed location would no longer be suitable and the Department could properly bring an action to revoke the Petitioner's permit. Therefore, I find that the Petitioner's proposed location is suitable for an off-premise beer and wine permit, with the restrictions set forth below.

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2000) set forth the requirements for the issuance of a beer and wine permit.

3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier 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). As the trier of fact, the Administrative Law Judge is authorized to determine 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 Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 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 operations 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). Additionally, 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 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).

4. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, 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 Judge Division, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions on permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

5. The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit at the proposed location with the following restrictions set forth below.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application for an off-premise beer and wine permit of Son Hai Nguyen, d/b/a Gee Gee's Food Store, be granted, with the following restrictions set forth below:

1. The Petitioner or his employees shall monitor the parking area to insure that no loitering is taking placing in the location's parking lot; and

2. The Petitioner or his employees shall monitor the parking area to insure that trash is collected from the area.

IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an off-premise beer and wine permit upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.

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Ralph King Anderson, III

Administrative Law Judge

May 4, 2001

Columbia, South Carolina

1. The Petitioner also has a guilty conviction for the sale of tobacco to an underage person at the location and has a pending charge of discharging a fire-arm in the city limits of Rock Hill following an armed robbery of his store. However, I find that these incidents are not sufficient probative evidence to prevent the Petitioner from receiving this permit.