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), § 61-4-525 (Supp. 2000), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000) for a contested case hearing. Russell Eugene Byrd is the owner of B&B Convenience and seeks an on-premise beer and wine permit for that establishment. On November 19, 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 January 16, 2002. A hearing was held in this matter on February 20, 2002, at the offices of the Administrative Law Judge 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 the Protestant, 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 Protestant(s).

2. B&B Convenience seeks an on-premise beer and wine permit for its location in Dillon County at 707 Hwy. 917 East, Latta, South Carolina. ⁽¹⁾ This location has not been previously permitted for the sale of beer and wine on-premises, although it has been operated as a convenience store for approximately forty (40) years.

3. The location is a convenience store that offers a small line of groceries to its patrons. The establishment also offers grill items such as hot dogs and hamburgers. Mr. Byrd operates the store along with several other employees. The location currently houses two pool tables along with a sound system and/or jukebox for entertainment. The Petitioner testified that his hours of operation will be as follows:

a.. 6:00 a.m. until 11:00 p.m., Monday through Saturday; and

b. Closed on Sunday.

The location has adequate parking for its patrons along with sufficient lighting both in front and in back of the location.

4. 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 and public notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

5. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit. Additionally, the location has not had any complaints from local law enforcement in the past.

6. The proposed location is not unreasonably close to a school or playground. Furthermore, although this is a predominantly rural area, other residences, businesses and churches are situated in this general area.

7. The Protestant, Reverend Velasquez, contends that this location is not suitable because it is situated too closely to the property of his church, Tabernacle Evangelico Hispanic Baptist Church. The entrance to the Church is approximately 393 feet from the proposed location. Given the nature of the Applicant's business and that of the community, I find that the proposed location is not unreasonably close to the church.

The crux of the Protestant's objection to this location being permitted to sell beer and wine is that he does not want his youth congregants exposed to alcohol use in such close proximity to his church and future school. Reverend Velasquez, an employee of the Baptist Convention, is a former missionary and businessman from Central America who is working with his church and the Convention on a Hispanic outreach project for rural Dillon County and surrounding areas. The church currently meets approximately twice a month. Nevertheless, the ultimate goal of this project is the creation of a school and youth center on the church's property that will provide a learning center for the area's Hispanic population. Reverend Velasquez feels that the proposed location could present a negative impression on the youth regarding the use of alcohol. However, this is a project that has not yet reached completion and possibly will not be completed for at least two years.

The arguments of the Protestant appear to be based on a sincere concern for his community, particularly in light of the creation of a school and youth center on the church's property. However, in order to deny this permit, direct evidence of an adverse impact on the community is necessary. 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, pursuant to the evidence that was available as of the time of this hearing and because the Protestant did not provide any evidence that the permitting of this establishment with an on-premise beer and wine permit would be detrimental to the community, I find that this location is suitable for an on-premise beer and wine permit, with the restrictions set forth below.

Nevertheless, the location has not been previously operated as a "pool hall." Its operation as a "pool hall" certainly presents a potential change to the current operation of his business. ⁽²⁾

Those changes could alter the integrity of the neighborhood or create an overall adverse impact on the community. Therefore, I find that 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 community. 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 his business is operated as a "pool hall" rather than as a local convenience store and "grill" or "deli," the proposed location would need to be reevaluated to determine if it 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, supra.; Taylor v. Lewis, supra.

5. "A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).

6. 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).

7. 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.

8. 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.

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

ORDERED that the application for an on-premise beer and wine permit of Russell Eugene Byrd, d/b/a B&B Convenience, be granted, with the following restriction set forth below:

1. The Applicant shall ensure that no music emanating from his location shall be audible outside of the proposed location so as to disturb any nearby residences, businesses, or churches;

2. The Applicant or his employees shall prohibit loitering and the consumption of beer or wine 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

March 14, 2002

Columbia, South Carolina

1. The "Notice of Application" published in The Dillon Herald, listed the location's correct address as "707 Hwy. 917 East" while the Petitioner's request for a contested hearing listed the address as "7087 Hwy. 917 East." Therefore, the Department's Agency Transmittal, the caption of this case, and all subsequent filings in this matter have an incorrect street address. However, this was not an issue at the hearing into this matter. The caption has been amended to reflect this change.

2. 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."