South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Marty L. Cannon, d/b/a Fast Times Grill vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Marty L. Cannon, d/b/a Fast Times Grill
4580 Hwy. 501 West, Conway, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0126-CC

APPEARANCES:
For the Petitioner: Kenneth E. Allen, Esquire

For the Respondent: appearance excused

For the Protestants: Allen Anderson, Genevieve Anderson, Davis Edge, Jr., Bruce Martin, Darena Edge (all appearing 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. (Supp. 2001) upon filing of an application by Petitioner, Marty L. Cannon, d/b/a Fast Times Grill, for an on-premise beer and wine permit for a location at 4580 Hwy. 501 West, Conway, South Carolina. Upon receipt of written protests to the application, the South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing. After timely notice to the parties and Protestants, a contested case hearing was held on May 20, 2002, at the ALJD in Columbia, South Carolina. Testifying on behalf of the Protestants were Genevieve Anderson, Davis Edge, Jr., Bruce Martin, and Darena Edge. Marty Cannon testified in support of the application. Upon review of the relevant and probative evidence and applicable law, the application for an on-premises beer and wine permit is denied.

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:

  • Notice of the time, date and place of the hearing was given to the Petitioner, Department and the Protestants.
    • The Department moved to be excused from appearing at the hearing on the ground that it would have granted the permit and licenses but for the protests of several area residents, who called into question the suitability of the location. Said motion was granted.
  • The Petitioner seeks an on-premises beer and wine permit for the proposed location at 4580 Hwy. 501 West ("501"), Conway, South Carolina. The parcel upon which the proposed location is situated comprises approximately one triangular-shaped acre, bordered on one side by 501, a four-lane, divided highway that runs west from Florence to Conway. It is the main artery to Myrtle Beach. As a result, traffic is very heavy on 501 during beach season, so heavy that traffic virtually stops from 11 a.m. to 4:00 p.m. several days a week.
  • Enoch Road, a very busy two-lane road which intersects with 501 at the corner of the parcel, borders the parcel on the northeast side. A school bus stop is located just off 501 on Enoch Road. Children then have to cross 501 to get to their homes. Several car accidents have occurred at the Enoch Road/501 intersection over the past few years, resulting in at least six fatalities.
  • Several residences are located near the proposed location, on both sides of 501. One such residence is adjacent to the proposed location. Across 501 are at least seven residences. Many children live in the area of the proposed location, including children living in a mobile home park located on Hallie Martin Road, just off 501 a short distance east of the proposed location.
  • Currently, Petitioner operates a restaurant, which opens at 5:30 a.m. for breakfast and closes after lunch at 2:00 p.m. If granted the permit, Petitioner intends to add on to the restaurant so that the location comprises a convenience store, selling beer and wine to go, and a restaurant, selling beer and wine for on-premises consumption. The proposed location, if permitted, would operate from 5:30 a.m. until 9:00 p.m., Monday through Saturday. Petitioner's convenience store will be the only store in the community. Consequently, children will frequent the proposed location. (1)
  • There is a hundred-year-old church located across 501 approximately one-half mile from the proposed location. In addition, there is at least one school bus stop in the immediate area of the proposed location.

The evidence offered raises significant concerns that this business will create an overall adverse impact on the community.

CONCLUSIONS OF LAW

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

  • Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001), S.C. Code Ann. § 1-23-600(B) (Supp. 2001) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 2001), the South Carolina Administrative Law Judge Division has jurisdiction over this matter.
  • S.C. Code Ann. § 61-4-520, which sets forth the requirements for the issuance of a beer and wine permit, provides, in relevant part:

No permit authorizing the sale of beer or wine may be issued unless:

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6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches.

***

S.C. Code Ann. § 61-4-520 (Supp. 2001).



    • The Petitioner or its principal has met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 (Supp. 2001), concerning residency, age, moral requirements, criminal convictions, reputation for peace and good order in its community, as well as the publication and notice requirements.
    • The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). 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 not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.
    • 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself upon which the location may be found to be unsuitable and a permit denied. Byers v. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
  • 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).
  • On the other hand, the nature and operation of the proposed business and its impact on the community within which it is to be located are important considerations in determining suitability of the location. See Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). It is inescapable that the nature and operation of a restaurant/convenience store with an on-premises beer and wine permit is different from and less conducive to a residential area than other commercial businesses, particularly when the store is located in a highly traveled, dangerous area. The children living in the area of the proposed location face danger posed by the 501/Enoch Road traffic daily; there is no escaping that such danger would escalate upon permitting this location. For the foregoing reasons, the nature of the proposed business activity renders the proposed location, located in the middle of a residential area, unsuitable. Accordingly, Petitioner's application for an on-premises beer and wine permit is denied.

ORDER

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

IT IS HEREBY ORDERED that the Petitioner's applications for an on-premises beer and wine permit for its location at 4580 Hwy. 501 West, Conway, South Carolina is DENIED.

AND IT IS SO ORDERED.



________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

May 22, 2002

Columbia, South Carolina

1. The Special Investigator assigned to evaluate Petitioner's application noted in his Report that "This location is in the middle of a residential area. It is the only store in the community. Children will go to this store."


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