South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Catherine S. Cox, d/b/a Discount Mart vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Catherine S. Cox, d/b/a Discount Mart
6129A Calhoun Memorial Hwy., Easley, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0089-CC

APPEARANCES:
For the Petitioner: Richard H. Warder, Esquire

For the Protestant: Mr. James E. Findley, Pro Se

For the Department: Excused
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2001), § 61-6-910 (Supp. 2001), and §§ 1-23-310 et seq. (1986 and Supp. 2001) for a contested case hearing. Petitioner seeks an off-premises beer and wine permit for a convenience store located at 6129A Calhoun Memorial Highway, Easley, South Carolina. The Department of Revenue (Department) made a Motion to be Excused stating that but for the protests it received, this license would have been granted. Said motion was granted. A hearing was held on this matter on April 15, 2002, at the offices of the Division in Columbia, South Carolina. Without objection, the Department of Revenue's file was made part of the record in this matter at the hearing.

The Protestant, James E. Findley testified at the hearing in opposition to the issuance of the permit. Four witnesses, including Petitioner, testified in support of the issuance of the permit.

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 parties and the Protestant, I make the following Findings of Fact by a preponderance of evidence:

  • Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Respondent, and the Protestants.
  • Petitioner seeks an off-premises beer and wine permit for a convenience store located at 6129A Calhoun Memorial Highway, in Easley, South Carolina. The store is located in a small strip mall totaling 4600 square feet, 594 square feet of which comprises the proposed location. Located in the same strip mall is a pharmacy called The Medicine Shoppe, which also leases 594 square feet of space in the strip mall. In front of the strip mall are 32 parking spaces. In addition, 4 parking spaces are located to the side of the proposed location. Based on the testimony presented, such parking appears more than adequate.
  • Petitioner is of good moral character. The State Law Enforcement Division completed a criminal background investigation of Petitioner. The SLED report revealed no criminal violations, and the record before this tribunal does not indicate that Petitioner has engaged in acts or conduct that imply the absence of good moral character
  • Petitioner is at least twenty-one years of age, a U.S. citizen, and a citizen of the State of South Carolina. Furthermore, Petitioner has maintained her principal residence in the State for at least thirty days prior to the date of making application for an off-premises beer and wine permit.
  • Petitioner has not had a beer and wine permit or alcoholic beverage license revoked within two years of the date of her application.
  • Notice of the application appeared in a newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks, and notice was posted at the proposed location for fifteen days.
  • Mr. James E. Findley, the Protestant, opposes the sale of beer and wine at this location due to its proximity to the Medicine Shoppe, the residential area located behind the strip mall, and a residential home for the mentally retarded located within a few blocks of the proposed location. Mr. Findley is a semi-retired pharmacist and former owner of the Medicine Shoppe, Mr. Findley sold the Shoppe to his daughter in 1996. When Mr. Findley first opened the Shoppe, a convenience store licensed to sell beer and wine was located in the same strip mall. Mr. Findley recalled that there were problems caused by the sale of beer and wine, including convenience store patrons urinating behind the building. Because he feels that the proposed location is inconsistent with the neighborhood, Mr. Findley opposes the granting of a beer and wine permit to Petitioner.
  • The Department does not oppose Petitioner's application and would have issued the permit but for the protest.

CONCLUSIONS OF LAW AND DISCUSSION

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

  • S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.
  • 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.
  • As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad, but he may not exercise unbridled discretion. See Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
  • Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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 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).
  • In this case, there is insufficient evidence to show that the proposed location is unsuitable or that the issuance of an off-premises beer and wine permit would create problems, or have an adverse impact on the community. Although the Protestant is concerned that a convenience store operating with a beer and wine permit might negatively impact the community, no resident of the community attended the hearing to protest the issuance of the license. Further, although the Protestant is concerned that the residents of the group home may be unnecessarily tempted by the availability of beer and wine, the director of the group home failed to either appear at the hearing or give prior notification to this tribunal that he would be unable to attend the hearing.
  • 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 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

ORDER

Based upon the Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Department of Revenue grant Petitioner's application for an off-premises beer and wine permit for the location 6129A Calhoun Memorial Highway, Easley, South Carolina.

AND IT IS SO ORDERED.



______________________________

C. DUKES SCOTT

Administrative Law Judge



April 15, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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