SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. §§ 61-2-260, 1-23-310, and 1-23-600 (Supp. 2001) for a contested case hearing. Wal-Mart Stores East LP d/b/a Wal-Mart Supercenter ("Applicant") seeks an off-premises beer and wine permit for the Wal-Mart retail store located at 3812 Liberty Highway, Suite 1, Anderson, South Carolina.

Melanie Thorne ("Protestant") filed a protest to the application with the South Carolina Department of Revenue ("Department") on February 1, 2002, based on her belief that alcohol is morally wrong and the sale of alcohol does not fit with the Wal-Mart philosophy. Because of the protest, the hearing was required.

The Department filed a Motion to be Excused from appearing at the hearing, stating that the Department would have granted the permit but for the protest of the application. By Order dated May 6, 2002, the Department's Motion was granted.

The hearing was held on June 10, 2002, at the offices of the Division at 1205 Pendeleton Street, Columbia, South Carolina. The Petitioner and the Protestant appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, this tribunal finds that the off-premises beer and wine permit should be granted.

FINDINGS OF FACT

Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and taking into consideration the burden of persuasion by the Petitioner and the Protestant, I make the following findings of fact by a preponderance of the evidence:

• Notice of the time, date, place, and subject matter of the hearing was given to all

the parties in a timely manner.

• Wal-Mart Stores East, LP, d/b/a Wal-Mart Supercenter #396, is the applicant

for an off-premises beer and wine permit for Wal-Mart Supercenter #396, which is located at 3812 Liberty Highway, Suite 1, Anderson, South Carolina. The location is within the city limits of Anderson, South Carolina.

• Theodore Berry is the store manager of Wal-Mart Supercenter #396. The permit

is to be issued in the name of Theodore Berry.

• Theodore Berry is forty-six years old. He is a resident and citizen of the state of

South Carolina and has been for more than thirty days prior to the filing of the application. Mr. Berry is of good moral character and has never been convicted of a crime.

• Notice of this application appeared at least once a week for three consecutive

weeks in The Anderson Independent-Mail, a newspaper of general circulation in the local area where the Petitioner operates.

6. Notice of the application was also given by displaying a sign for a minimum of fifteen (15) days at the location.

• The location is a retail department store that sells miscellaneous grocery items,

clothing and assorted goods.

• There are no churches, schools, or playgrounds within five hundred feet of the

proposed location.

• No evidence was presented at the hearing of any law enforcement problems

having occurred at or around the location.

• Melanie Thorne, a cashier who works for the Petitioner, filed a protest to the

issuance of the off-premises beer and wine permit.

• Miss Thorne appeared at the hearing and testified she opposes the granting of the

permit because she believes alcohol is morally wrong, alcohol does not benefit the customers or community, and selling alcohol is against the family-friendly reputation of Wal-Mart.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1 of the Code of Laws of South Carolina 1976 Annotated, as amended, the Administrative Law Judge Division has personal and subject matter jurisdiction in this case.

• S.C. Code Ann. § 61-4-520 (Supp. 2001), which sets forth the requirements for

the issuance of a beer and wine permit, provides in pertinent part:

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

(1) The applicant, any partner of co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises are of good moral character.

(2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

. . . .

(4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

(5) The applicant is twenty-one years of age or older.

(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. This item does not apply to locations licensed before April 21, 1986.

(8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section.

(9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

• 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 a 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 evaluating the issuance of a beer and wine permit, the proximity of the

location to a church, school, or playground is a proper ground on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). In this case, the location is not within an improper proximity to churches, schools, or playgrounds.

• The judge may consider whether there have been any law enforcement

problems in the general area. Schudel v. South Carolina Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Absent evidence of any law enforcement problems at this location thus far, the potential for problems is not a basis on which to deny the application in this case.

• The judge also may consider the proximity or the absence of other licensed

locations in the immediate vicinity. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the issuance of a beer and wine permit to Petitioner is consistent with the general character of the area around the location.

• Unless there is sufficient evidence of an adverse impact on the community, the

application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not 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).

• 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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). The Protestant objects to the sale of alcohol in general, and its sale by Wal-Mart in particular. These opinions, however, are not a valid legal basis for denying the application in this case. The sale of beer and wine is a lawful, regulated enterprise in South Carolina. While this tribunal acknowledges the protestant's opposition to the issuance of the permit, as well as their right to hold such sentiments, mere aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of a permit request. See, e.g., 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). Petitioner only needs to satisfy the legislative requirements in order to obtain a beer and wine permit.

• There has not been a sufficient evidentiary showing that the present location is

unsuitable or that the issuance of an off-premises beer and wine permit would affect the residents' safety, create traffic problems, or have an adverse impact on the community. The proposed location and the nature of the business activity are suitable and proper.

• I conclude that Petitioner has met all of the statutory requirements for holding an

off-premises beer and wine permit at the location. I further conclude that the location is proper and suitable for granting the permit.

ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that the South Carolina Department of Revenue must issue an off-premises beer and wine permit in the name of Theodore Berry to Wal-Mart Stores East, LP, d/b/a Wal-Mart Supercenter #396, located at 3812 Liberty Highway, Anderson, SC, upon payment of the appropriate fees.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

June 11, 2002

Columbia, South Carolina