South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Dejim Corporation, d/b/a Cash and Dash #7 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Dejim Corporation, d/b/a Cash and Dash #7
701 Hwy. 701 North, Loris, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0529-CC

APPEARANCES:
Kenneth Allen, Esq.
For Petitioner

Rev. Mark Stevens
Protestant, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001) for a contested case hearing. Petitioner Dejim Corporation seeks an off-premises beer and wine permit for its "Cash and Dash" convenience store located at 701 Highway 701 North, Loris, South Carolina. The Department of Revenue (Department) would have granted the permit but for the protest of Reverend Mark Stevens on behalf of the Glendale Baptist Church regarding the suitability of the store's location. Accordingly, the Department was excused from the hearing of this matter. After notice to the parties and the protestant, a hearing was held on February 26, 2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location and the applicable law, Petitioner's application for an off-premises beer and wine permit is hereby granted.

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 submitted an application for an off-premises beer and wine permit with the Department on August 14, 2001, for the premises located at 701 Highway 701 North, Loris, South Carolina. This application is incorporated by reference into the record.

2. The proposed location is situated along a two-lane highway in an area with both residential and commercial buildings. While the location has never been licensed with a beer and wine permit, it has been operated as a convenience store in harmony with the surrounding community since the 1970s.

3. Jimmy W. Garrell, owner and president of Petitioner Dejim Corporation, and Cathy Cox, manager of Petitioner's convenience store, are over twenty-one years of age, are of good moral character, and have no record of any criminal convictions.

4. Petitioner Dejim Corporation has been authorized by the South Carolina Secretary of State to conduct business in South Carolina since 1991.

5. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has not had a beer and wine permit or alcoholic beverage license suspended or revoked.

6. Notice of the application for an off-premises beer and wine permit appeared in The Loris Scene newspaper once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

7. The proposed location is 180 feet away from the nearest residence and over 2000 feet away from the nearest church. There are no schools, churches, or playgrounds in the immediate vicinity of the proposed location.

8. Protestant Reverend Mark Stevens of the Glendale Baptist Church opposed Petitioner's application for an off-premises beer and wine permit because of the proximity of the location to surrounding residences, some of which are owned by members of his church, and because of his general moral objection to the sale of alcohol. Two members of the Glendale Baptist Church also testified at the hearing and expressed similar objections to Petitioner's application.

STIPULATIONS

In order to promote favorable consideration of its application and to address the concerns of the protestant, Petitioner voluntarily stipulated to placing the following restrictions on its permit:

1. Petitioner will close the convenience store by 12:00 a.m. each night.

2. Petitioner will construct a six-foot-high wooden fence between the location and adjacent residential properties.

CONCLUSIONS OF LAW

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

1. Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001).

2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984).

3. S.C. Code Ann. § 61-4-520 (Supp. 2001) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one. See id. § 61-4-520(6)-(7).

4. Although "suitable location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. The determination of suitability of location is not necessarily a function solely of geography. Rather, it involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community in which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. However, without sufficient evidence of an adverse impact on the community, a permit 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 48 C.J.S. Intoxicating Liquors § 119 (1981).

7. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an off-premises beer and wine permit, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner's business or that the issuance of the permit would create problems in or have an adverse impact on the surrounding community. While Petitioner's business is near several residences, the convenience store is located along a stretch of highway that is both residential and commercial in nature, where houses and businesses often sit adjacent to one another. Moreover, the introduction of the sale of beer and wine for off-premises consumption at Petitioner's convenience store will not significantly change the nature or character of Petitioner's operations. This location has been operated as a convenience store for nearly thirty years, and during that time it has harmoniously coexisted with nearby residences and the surrounding community in general. The sale of beer and wine for off-premises consumption at the store will not disrupt this relationship. A convenience store selling beer and wine for off-premises consumption simply does not engender the sorts of problems associated with establishments that allow patrons to congregate and consume beer and wine on their premises, with the attendant merrymaking and potential disturbance to neighbors common to such gatherings. Therefore, Petitioner's location is suitable for the issuance of an off-premises beer and wine permit.

8. Further, in making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. Here, the objections raised by the protestant and the witnesses who testified on his behalf are mainly rooted in their general moral objection to the sale of alcoholic beverages. While this tribunal acknowledges their opposition to the issuance of the permit, as well as their right to hold such sentiments, the mere aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of a permit request. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). Therefore, the arguments proffered by the protestant and his witnesses do not constitute a sufficient basis upon which to deny Petitioner's permit application.

Nonetheless, Petitioner has agreed to certain restrictions on its permit. As a result, Petitioner is subject to compliance with those restrictions for continued licensure. A permit to sell beer and wine is neither a contract nor a property right. Rather, it is merely a permit, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do, and to be enjoyed so long as the restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). As such, the stipulations submitted by Petitioner will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit. 23 S.C. Code Ann. Regs. 7-88 (1976).

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Department of Revenue continue processing Petitioner's application for an off-premises beer and wine permit for the location at 701 Highway 701 North, Loris, South Carolina.

IT IS FURTHER ORDERED that the Department incorporate the stipulations contained herein as restrictions upon Petitioner's permit.

AND IT IS SO ORDERED.



______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



March 7, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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