South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
T&E Investment Co., d/b/a Sunset Park Grocery vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
T&E Investment Co., d/b/a Sunset Park Grocery
801 Ogden Road, Rock Hill, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0223-CC

APPEARANCES:
For the Petitioner: Robert McCleave, Esquire

For the Respondent: Nicholas P. Sipe, Esquire (appearance excused)

For the Protestants: Levot Jones, Jr.
 

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 a renewal application by Petitioner T&E Investment Co., d/b/a Sunset Park Grocery ("Petitioner") for an on-premise beer and wine permit for a location at 801 Ogden Road, in Rock Hill, South Carolina. After receiving a written protest, 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 the Protestant, a contested case hearing was held on July 18, 2002, at the ALJD in Columbia, South Carolina. Levot Jones, Jr., testified in protest of the application. Carl Eddie Gainey, Jr., Retha Durham, and Sara Blake testified in support of the application. Upon review of the relevant and probative evidence and applicable law, the renewal application for an on-premise beer and wine permit is granted.

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, Protestants, and the Department.
    • The Petitioner seeks an on-premises beer and wine permit for the located at 801 Ogden Road, Rock Hill, South Carolina ("proposed location" or "Grocery"). The proposed location is situated in the Sunset Park area, which consists of residences, a school, a park, and several other businesses. The location has been licensed for the sale of beer and wine continuously since the early 1970's, when it was owned by the father of the current owners, Eddie and Tommy Gainey, principals of the Petitioner. The Petitioner was previously licensed for this location in 2000. Eddie is 55 years old and Tommy is 52. Both are life-long residents of South Carolina.
    • The proposed location is open from 7 a.m. to 7 p.m., Monday through Saturday, and sells snack items, lunches, groceries, and beer and wine to residents of the Sunset Park neighborhood. A majority of the patrons walk to the store.
    • In the two block area surrounding the Grocery are five establishments licensed to sell alcoholic beverages.
    • But for the written protest of Levot Jones, Jr., the Department would have granted the permit.
    • The Protestant, Levot Jones, Jr., has lived in the Sunset Park area of Rock Hill for forty-five years. He believes that it is not right to have the Grocery located in his neighborhood. Mr. Jones lives on Ogdon Street, very near the Grocery. Mr. Jones does not want the Grocery in front of his house. He believes that it is proper for some places to sell alcoholic beverages, but not this one because of where it is located. Mr. Jones has concerns about trash, including beer bottles, in the area of the Grocery.
    • The evidence establishes that the proposed location has been licensed continuously since the early 1970's.


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 in this matter.
  • 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 relevant 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. ***

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.

***

  • The Petitioner, through its principals, has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001), concerning residency and age, as well as the publication and notice requirements.
  • In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
  • Based upon his testimony, the Protestant opposes the issuance of a beer and wine permit to the Petitioner because of the proposed location's proximity to his residence and the residences of others in the Sunset Park area. However, the proximity of residences to the proposed location may not be considered in determining the suitability of an establishment licensed prior to 1986. The Protestant offered no other evidence that would suggest that the proposed location is unsuitable.
  • I conclude that the Petitioner has met her burden of proof in showing that it meets all of the statutory requirements for holding an on-premises beer and wine permit at the proposed location. I further conclude that the proposed location is a proper one for granting the permit.

ORDER

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

IT IS HEREBY ORDERED that Petitioner's application for an on-premises beer and wine permit for the proposed location known as the Sunset Park Grocery, 801 Ogden Road, in Rock Hill, South Carolina, is granted upon payment of all fees and statutory requirements.

AND IT IS SO ORDERED.



___________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE





July 18, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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