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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Li'l Cricket Food Stores, Inc., d/b/a Li'l Cricket Food Store #346 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Li'l Cricket Food Stores, Inc., d/b/a Li'l Cricket Food Store #346
10305 Hwy. 78, Ladson, S.C.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0172-CC

APPEARANCES:
Walter B. Todd, Jr., Esquire, for the Petitioner

Jeffrey M. Nelson, Esquire, for the Respondent

Lindsay Nelson, Protestant
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This matter is before the South Carolina Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2001) and upon the request of the Petitioner for the renewal of an off-premises beer & wine permit. The proposed location is known as Li'l Cricket Food Store #346, located at 10305 Hwy. 78, Ladson, South Carolina. This location has been permitted since April 2001.

The South Carolina Department of Revenue ("Department") filed a Motion to be Excused, stating that the Department would have renewed the permit but for the protest of the application. The Department's Motion was not granted and the Department appeared at the hearing.

There were two people who filed protests with the Department, Lindsay Nelson and Lon Eidom of Pleasant Grove Baptist Church. Mr. Eidem did not attend the hearing and therefore his protest is deemed abandoned. Mr. Nelson did attend the hearing.

A hearing was held before the undersigned at the offices of the Division in Columbia, South Carolina on August 29, 2002. Notice of the time, date, location, and nature of the hearing was timely sent to all parties, as well as the Protestants.

FINDINGS OF FACT

Having observed testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the parties as well as the Protestants in a timely manner.

  • The Petitioner seeks the renewal of an off-premises beer and wine permit for the

business establishment known as Li'l Cricket Food Store #346, located at 10305 Hwy. 78, Ladson, South Carolina.

3. Li'l Cricket is a convenience store that sells gasoline and miscellaneous grocery

items. This location has been in operation since August 2001 and received its beer and wine permit on April 30, 2001. Prior to that, the company operated another Li'l Cricket (#313) on the same highway approximately 500 yards from the current location. That building was older when Li'l Cricket purchased it. There had been some sort of store there for thirty years under various owners. Before Li'l Cricket bought it, it had been operating 24 hours a day.

4. Li'l Cricket's hours of operation are 6:00 a.m. - 1:00 a.m., Monday thru Sunday. Li'l Cricket's permit allows for the sale of beer and wine on Sunday as well as other days of the week.

5. Lindsay Nelson individually filed a Protest in this action. Mr. Nelson formerly lived

two houses back from the older location. He contends there were many problems with the location and that the problems continued after Li'l Cricket bought the building. However, he has since moved from the area and has not lived in the area since the new location opened. He passes the property by car about six times a week, but he does not know if the new location is causing problems since he does not live there. (1) Mr. Nelson does not like alcohol sales on Sunday and in fact is opposed to all sales of alcohol.

6. Mr. Nelson attends Pleasant Grove Baptist Church which is approximately 2/10 mile from the location. Photographs in evidence indicate the location cannot be seen from the church.

6. The Department has indicated that the Petitioner met all statutory requirements relative to renewal of an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2001) and 23 S.C. Ann. Regs. 7-90 (1976) and that it would have issued the renewal of the permit but for the protests.



CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2001) grants jurisdiction to the South Carolina Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2001) grants to the South Carolina Administrative Law Judge Division the powers, duties and responsibilities to hear contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2001) sets forth the requirements for issuance of beer and wine permits.

4. 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).

5. Any evidence adverse to a location may by considered. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school or residence is a proper ground by itself on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can consider whether there have been any law enforcement problems in the general area. Palmer v. S.C. ABC Comm'n 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence of other licensed locations in the immediate vicinity and the existence of students and small children in the area.

6. 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).

7. 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, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the Protestant no longer lives in the community of the location. He does attend church in the area, but his assertion that the renewal of the permit would affect the church and its parishioners is conjectural and without any specific factual support.

8. Standards for judging the suitability of a proposed location for the sale of beer, wine

or liquor are not determined by a local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, regulated by the State.

9. I conclude that the Petitioner's burden of proof has been met by virtue of meeting

all of the statutory requirements for renewing the off-premises beer and wine permit at the proposed location. I further conclude that the proposed location is proper for renewing the permit.ORDER

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

ORDERED that the South Carolina Department of Revenue shall renew the off-premises beer and wine permit for Li'l Cricket Food Store #346, located at 10305 Hwy. 78, Ladson, South Carolina.

AND IT IS SO ORDERED.







____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



October 15, 2002

Columbia, South Carolina

1. Mr. Nelson testified about the problems he encountered when the new Li'l Cricket was first built and seeking a permit. He testified about problems with the posting of the notice, the notice in the newspaper and paperwork mistakes at he Department of Revenue. All of this is irrelevant to the case before me. This is a renewal hearing in which Mr. Nelson has properly protested, been given notice of the hearing and had an opportunity to be heard.


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