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, One Stop of Newberry ("Petitioner" or
"One Stop"). Petitioner seeks an off-premise beer and wine permit for a convenience store to be located at
3206 Main Street, Newberry, South Carolina 29108.
Upon receipt of written protest to the issuance of the permit by members of the community, Respondent
South Carolina Department of Revenue (DOR) transmitted the case to the Administrative Law Judge
Division (ALJD) for a contested case 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 August 7, 2001, 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 seeks an off-premises beer and wine permit for the proposed location of 3206 Main Street,
Newberry, South Carolina which is within Newberry city limits.2. The proprietor of the proposed location is Timothy Scott Ward ("Ward").
3. The proposed location is located on Highway 219. Newberry High School is located on the opposite side
of Highway 219. Pursuant to the investigative report of the South Carolina Law Enforcement Division
submitted by DOR, the proposed location is approximately three hundred forty-two (347) feet from the
closest door of the high school.
4. Petitioner has met all statutory requirements, and but for the protest, DOR would have issued the permit.
5. DOR does not oppose the issuance of the permit.
6. Gregory Summer is a resident of Newberry and lives nearby the proposed location. Summer testified at the
hearing that he is concerned about the proximity of the proposed location to Newberry High School. The
athletic field is adjacent to the high school. Summer stated that the athletic field is used for several different
activities including sports, band events, and events for groups other than students. Another concern of
Summer is the proximity of the proposed location to two neighborhoods. Loblolly and Forest Ridge
subdivisions are adjacent to the proposed location. The protestant opposed a possible increase of traffic in the
neighborhoods that may be caused by the expected patrons of the convenience store.
7. Elizabeth Adams testified as a representative of the Newberry County Career
Center. She believes the proposed location is too close to the high school and feels the increased traffic
would threaten the safety of the students on the highway. Adams expressed concern about possible
vandalism and litter at the school and career center if the proposed location is allowed to sell beer and wine.
8. Brian Pruett resides less than five hundred (500) feet from the proposed location. Pruett stated that this
location could have the same problems that another local convenience store has had with loitering and
littering.
9. Dr. Vernon Keith Callicutt is the Superintendent of Newberry County schools. He testified that he
anticipates problems with the proposed location being within such close proximity to the high school.
10. The Assistant Principal of Newberry High School, Winfred Rodgers, testified that a major concern with
having the proposed location across the highway from the school is that students will try to walk across the
highway to purchase goods from the convenience store. He feels this would be very hazardous with the
anticipated increase of traffic. Rodgers stated that the students currently cross the highway to go to Burger
King, and it is a dangerous situation.
11. Stephanie Glanville is a parent and substitute teacher at Newberry High School. The protestant testified
that she lives five houses away from the proposed location. Glanville stated that several students walk to
school from the nearby neighborhoods. She is concerned that students may be injured by drivers coming
from the convenience store that could be intoxicated. The protestant also feels that access to the proposed
location increases the risk of underage drinking.
12. Sinclair Talbot resides in a nearby neighborhood and real estate broker. She feels the proposed location
could decrease the property value of nearby residences. Talbot is a member of the presbyterian church and is
also concerned about the property value of the presbyterian parsonage that is located nearby the proposed
location.
13. A resident of Loblolly subdivision, Mildred Livingston, testified that there are several families that reside
in Loblolly and Forest Ridge subdivisions. Livingston feels the properties in the subdivisions will suffer in
value if a convenience store is constructed at the proposed location. The protestant believes having alcoholic
beverages available for sale at the convenience store will increase the temptation for people under the age of
twenty-one to attempt to buy or consume alcohol. Livingston stated that if the business at the proposed
location fails, the building could be left vacant which may cause additional problems for the neighborhood.
17. Chief Lewis Jasper Swindler, Jr. of the Newberry Police Department stated at the hearing that he felt the
proposed location is too close to the school, especially with the flow of pedestrian traffic in the area. He is
concerned that along with alcohol, the convenience store may sell adult magazines and cigarettes which could
cause problems for minors.
18. Cere Pendarvis testified that one of the reasons she moved to the Newberry area was to seek out a quiet
community. She is concerned that if the convenience store opens for business at the proposed location the
quiet nature of the community will be disrupted.
19. Timothy Scott Ward is the applicant and intends to construct a convenience store at the proposed
location. Ward started in the convenience store business about fifteen (15) years ago. He began as a clerk,
moved into management, and currently owns four convenience stores in South Carolina. Ward holds off-
premise beer and wine licenses at his other convenience stores. The four convenience stores are open twenty-four (24) hours a day, and each have a manager, assistant manager, and district manager. The district
manager travels to the stores daily to review problems and attempts to resolve them immediately. The
outside grounds are cleaned every shift.
Ward testified that loitering was not allowed at his convenience stores. The normal procedure used to handle
loitering at his stores is to ask the loiterer to leave. If the person does not vacate the premises, the clerk is to
call the local police. Applicant has thirteen (13) to sixteen (16) cameras at each store. They are of the latest
technology and are installed inside and outside the building. He also testified that selling alcohol to patrons
under the legal age or selling alcohol to intoxicated patrons is not allowed at his stores. Ward, or an
employee of his, has on two occasions refused to sell alcohol to intoxicated patrons. Parents have been called
to inform them of their child trying to buy alcohol or cigarettes. The convenience store employees of Ward's
are usually residents of the community in which the store is located. Most of the employees have strong ties
with the community and are familiar with local families.
The applicant stated that there would be no loud noise at the proposed location. He stated that there would be
adequate lighting that is similar to the lighting he has used at his other convenience stores.
20. Many of the concerns of the Protestants are with the actual construction of the convenience store at the
proposed location. The Petitioner is not before this tribunal for approval to build a certain type of business;
he is before this tribunal for an off-premise beer and wine permit. While some Protestants did make
arguments regarding the actual sale of alcohol, others were more concerned with a possible increase in traffic
or decrease in nearby property values that may be caused by the construction of the business at the current
vacant lot. However, the proposed location is commercially zoned, and any business located at the proposed
location could raise the same concerns with traffic or property values.
21. The proposed location is suitable for an off-premise beer and wine permit with certain restrictions.
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. As set forth earlier, some of the Protestants had concerns that a convenience store, especially one that
offers the sale of beer and wine, would decrease their property values and quality of life. However, for this
tribunal to deny the permit on the basis of a possible decrease in others' property value would in essence be
effectuating zoning . The ultimate purpose of zoning is to confine certain classes of buildings and uses to
certain localities and thereby protect the value of the zoned property. 101A C.J.S. Zoning and Land Planning
§ 101 (1979). Such authority is vested solely in the local government. Furthermore, an ordinance may
reasonably exclude certain uses of property from a business, commercial, or industrial district, and,
accordingly, may exclude certain businesses from a district. 101A C.J.S. Zoning and Land Planning § 59
(1979).
13. 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 One Stop'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 3206 Main Street,
Newberry, South Carolina is granted, with the following restrictions and conditions, upon the applicant
signing a written agreement to be filed with the Department of Revenue to adhere to the stipulations set forth
below:
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. No pool tables, jukeboxes or loud noise that can be heard outside the proposed location will be allowed.
4. The applicant shall keep the business's trash contained in an enclosed fence to keep it out of sight of
patrons and the neighboring areas.
5. The Petitioner will provide adequate outside lighting for safety reasons and to discourage improper
activity at the proposed location. The Petitioner shall maintain adequate lighting without lights reflecting
upon or shining on local residences.
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
August 20, 2001
Columbia, South Carolina |
