South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Robert L. Boykin, d/b/a L.J.'s vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Robert L. Boykin, d/b/a L.J.'s
500 Old Manning Road, Sumter, S.C.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0115-CC

APPEARANCES:
For the Petitioner: J. Calhoun Land, IV, Esquire

For the Protestants: Sheriff Tommy R. Mims and

Richard C. Jones, Esquire For the Department: Excused
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2000), § 61-4-520 (Supp. 2000), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2000) for a contested case hearing. Robert L. Boykin is seeking an on-premise beer and wine permit for L.J.'s. On March 2, 2001, Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protests of concerned citizens, the Department would have found this location to be suitable. This motion was granted by my Order dated April 3, 2001. A hearing was held in this matter on May 17, 2001, at the offices of the Administrative Law Judge Division in Columbia, South Carolina.



FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and the Protestants, 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 given to the Petitioner, the Department, and the Protestants.

2. L.J.'s seeks an on-premise beer and wine permit for its location at 500 Old Manning Road, Sumter, South Carolina. After Robert L. Boykin purchased the store, he made substantial improvements to the location. He testified that the location will essentially be a family-run convenience store with a grill open for breakfast, lunch and dinner. There will be no bar in the location. His hours of operation will be:

a. 6:30 a.m. to 9:00 p.m., Monday through Thursday; (1)

b. 6:30 a.m. to 11:00 p.m., Friday and Saturday; and

c. Closed on Sunday.

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

4. Mr. Boykin has no criminal record and is of sufficient moral character to receive a beer and wine permit. The concerns raised at the hearing by the Protestants do not extend to Robert Boykin personally but rather concern the character of the location as previously permitted. 5. The proposed location is not unreasonably close to any church, school or playground. Pine Grove Baptist Church is approximately 1000 yards away and Lakewood High School is approximately 1/8 of a mile away.

6. Young's convenience store, which is permitted to sell beer and wine off-premises, is approximately less than one mile from the proposed location.

7. This location has been previously permitted for the sale of beer and wine "on and off" for approximately twenty years. However, the Petitioner was not a part of that permit and had no connection to the business at that time. Mr. Boykin's heating and air business is also housed behind L.J.'s.

8. The Protestants object to the issuance of a permit to the Petitioner because of the problems that have occurred at this location in the past. The previous establishment at this location was somewhat of a burden on law enforcement because of the lack of manpower to respond to calls in this part of Sumter County. However, although Sheriff Mims testified that this location, when previously permitted for the sale of beer and wine, had generated law enforcement calls, he also set forth that the number of calls was low for that type of location - which had more of a "nightclub" character. Additionally, Pine Grove Baptist Church opposes the issuance of this permit because of the close proximity of the location to its church property, the previous incidents with litter on church grounds, the noise which emanated from the previous location, and the loitering, urinating, and consumption of alcohol outside the location.

The Petitioner is establishing a new business. He has already made substantial improvements to the building, including aesthetic and plumbing improvements. It appears that the previous problems at the location were a result of the management and the patrons that establishment attracted. Additionally, no action has ever been brought against a previous permit or license holder at this location asserting that the location was a nuisance to law enforcement.

Both the arguments of the Sheriff and the Protestants appear to be based on a sincere concern for their community. Furthermore, the general community does appear to be evolving more into a residential complexion. Therefore, if this business is operated as the previous permittee managed the location, it would create an overall adverse impact on the community. Nevertheless, the evidence did not establish that the granting of this permit for the operation of the location as the Petitioner proposes will augment the criminal activity in this area or have an overall adverse impact on the community. 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.

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 without any actions having been brought against the permittee. Therefore, since it appears that this new business would not change the integrity of the neighborhood or create an overall adverse impact on the community, the proposed location is suitable for an on-premise beer and wine permit with the restrictions set forth below. To the contrary, the proposed location will not be suitable if:

a. The Petitioner does not comply with the restrictions below;



b. Problems referred to above that existed at the previous establishment occur at the Petitioner's location after he receives a beer and wine permit; or



c. The proposed location ceases to operate solely as a convenience store with a grill open for breakfast, lunch and dinner.

Any other use of this location could change the developing residential character of the neighborhood.



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 (Supp. 2000) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

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

4. 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).

5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner 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).

6. The determination of suitability of a 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).

7. 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).

8. In considering the suitability of a location, it is 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).

9. 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, 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.



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



ORDER

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

ORDERED that the on-premise beer and wine permit application of Robert L. Boykin be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to the restrictions that are set forth below:

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



2. The Petitioner or his employees shall prohibit loitering and the consumption of beer and wine in the parking lot area of the proposed location and shall ensure that no public disturbance is created. Furthermore, the Petitioner shall construct a barrier or fence to limit the parking by his patrons to the front of the location.



3. The Petitioner or his employees shall not allow music or noise to be heard outside the location so as to create a public disturbance.



4. The Petitioner shall not operate this location as a bar but as a convenience store with a grill open for breakfast, lunch and dinner.



5. The Petitioner shall not sell beer or wine at the proposed location between the hours of 11:00 p.m. and 6:30 a.m.



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 on-premise beer and wine permit upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.





_________________________________

Ralph King Anderson, III

Administrative Law Judge



June 6, 2001

Columbia, South Carolina

1. Although there was discussion at the hearing that the Petitioner would close L.J.'s on Wednesday evenings when Pine Grove Baptist Church had services and/or meetings, I am not placing this restriction on Mr. Boykin's permit because the nature of his business will be primarily the sale of items other than alcohol. If Mr. Boykin chooses to close on Wednesday evenings, it will be of his own volition.


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