SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to

S.C. Code Ann. §1-23-310 et seq. (1986 & Supp. 2000), S.C. Code Ann. § 61-2-90 (Supp. 2000) and S.C. Code Ann. §61-4-525 (Supp. 2000) for a contested case hearing. The Petitioner, Nora Taylor, d/b/a EZ Mart (EZ Mart), seeks to renew an on-premise beer and wine permit for that location. The South Carolina Department of Revenue (Department) set forth in the Agency Transmittal to the Division that it would have issued the permit to the Petitioner but for the protests it received from concerned citizens who raised the issue of suitability of location. A hearing was held on November 19, 2001 at the offices of the 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 persuasion by the Petitioner and 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 Protestants, and the Department of Revenue.

2. The Petitioner seeks to renew an on-premise beer and wine permit for EZ Mart located at 201 S. Congress Street, Town of Winnsboro, Fairfield County, South Carolina. The location has been previously permitted for the sale of beer and wine on-premises for approximately two years. The Petitioner leased EZ Mart from its previous owner in May 2001 and had been operating at the location under a temporary license, which expired in September 2001, pending the outcome of this contested case hearing. The location is operated as a convenience store by Ms. Taylor and her husband with a separate area designated as a "deli" or "grill" which serves sandwiches and prepared foods. Television sets and two pool tables now provide entertainment for patrons. The Petitioner testified that her hours of operation will be as follows:

a. 8:30 a.m. until 11:00 p.m., Monday through Thursday; and

b. 8:30 a.m. until 12:00 a.m., Friday and Saturday.

Also, the location has adequate parking and sufficient lighting outside.

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, the Petitioner has not had a permit or license revoked within the last two years. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner has no criminal record. Furthermore, no evidence was presented that impugned the Petitioner's personal character. The reputation of the Petitioner's business is quite another matter. However, to receive a beer and wine permit, only the permittee must be of sufficient moral character. There is no specific requirement that the business have a reputation for peace and good order. Therefore, the Petitioner is of sufficient moral character to receive a beer and wine permit.

5. EZ Mart is situated in downtown Winnsboro in an area that is both residential and commercial. The proposed location is not unreasonably close to any church, school or playground. Also, The Tavern, a restaurant with a sale and consumption license and beer and wine permit, is located approximately 2/10 of a mile from EZ Mart. Furthermore, other locations that are permitted to sell beer and wine off-premises are situated nearby as well as the local sheriff's office and police station.

6. The Protestants are concerned about drunk patrons from EZ Mart loitering in the immediate area at night and also fear a possible increase in criminal activity. In particular, the Protestants are worried that the nature of EZ Mart's patronage will damage and possibly halt their goal of revitalizing the town by encouraging the growth of new businesses based upon a productive economy and emphasis on the history of the town. The location was previously operated before Nora Taylor leased it from its owner, though it contained video poker machines and no pool tables. The Protestants believe that the addition of pool tables to EZ Mart has changed the clientele of the location. This is problematic since the Fairfield County Museum, which hosts guided tours of the historical downtown area (at least monthly), is located approximately five doors down from EZ Mart. Furthermore, downtown Winnsboro is currently undergoing a revitalization phase and the town has received federal grants to help fund this goal.

The arguments of the Protestants appear to be based on a sincere concern for their community, particularly in light of the upcoming aesthetic improvements that are being implemented to historical downtown Winnsboro. However, 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 that permittee. The Protestants did not present evidence linking EZ Mart's patrons to criminal activities in the area to substantiate their concerns. There was also no evidence of any violations of the Petitioner's temporary license and permit. Therefore, the evidence did not establish that the granting of a permit at this the location will augment the criminal activity in this area or have an overall adverse impact on the community if the business is operated as a convenience store and "deli" or "grill" as it has been in the past.

Nevertheless, the location has not been previously operated as a "pool hall." Its operation as a "pool hall" certainly presents a potential change in the nature of the clientele of the location. ⁽¹⁾

Those changes could alter the integrity of the neighborhood or create an overall adverse impact on the community. Therefore, the proposed location is suitable for an on-premise beer and wine permit as a convenience store and "deli" or "grill" with the restrictions set forth below. These restrictions are necessary to protect the current integrity of the town. Consequently, the proposed location will not be suitable if the Petitioner does not comply with the restrictions below. Additionally, I caution the Petitioner that if her business is operated as a "pool hall" rather than as a local convenience store and "grill" or "deli," the proposed location would no longer be suitable and the Department could properly bring an action to revoke the Petitioner's permit.

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, the Administrative Law Judge Division is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 181 (1981). 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). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct. App. 1984). It is also 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). Furthermore, in considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. 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).

5. 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).

6. 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.

7. The evidence did not establish that the location is any less suitable for the sale of beer and wine with the restrictions set forth below than during the prior years of being permitted. Therefore, the Petitioner meets the statutory requirements for holding a beer and wine permit.

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

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 Nora Taylor, d/b/a EZ Mart, 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 her employees shall prohibit loitering and the consumption of beer, wine or liquor in the parking lot area of the proposed location.

IT IS FURTHER ORDERED that a violation of the above restriction 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

December 28, 2001

Columbia, South Carolina

1. Interestingly, the S.C. Supreme Court set forth in Clegg, et al. v. City of Spartanburg, 128 S.E. 36, 37 (1925) (quoting Thomas v. Foster, 93 S.E. 397, 397 (1917) that: "Playing pool and billiards is fraught with some danger of the morals of those who play, even when the playing is done under the most favorable surroundings in the atmosphere and under the restraining influence of the home, or in the privacy of the clubroom."