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. Market Express of Elmwood, Inc., d/b/a Market Express No. 704, 1027 Elmwood Avenue, Columbia, South Carolina ("Applicant"), seeks an off-premises beer and wine permit for the premises located at 1027 Elmwood Avenue, Columbia, South Carolina.

Jesse T. Reese, III ("Protestant"), filed a protest to the application with the South Carolina Department of Revenue ("Department") on August 1, 2002, based on his belief that the sale of alcohol in this vicinity contributes to a trash problem on his nearby property. The Department stated that they would have granted the permit but for the protest of the application.

The hearing was held on November 7, 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.

• Market Express of Elmwood, Inc., d/b/a Market Express No. 704, 1027 Elmwood

Avenue, Columbia, South Carolina, is the applicant for an off-premises beer and wine permit for the premises located at 1027 Elmwood Avenue, in Columbia, South Carolina.

• Nige Heath is the store manager for this Market Express location. The permit is

to be issued in the name of Nige Heath.

• Nige Heath is fifty-five 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. Heath is of good moral character and has never been convicted of a crime.

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

• The location is a retail convenience store that sells gasoline and miscellaneous

goods.

• There are no churches, schools, or playgrounds within three 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.

• Jesse T. Reese, III, filed a protest to the issuance of the off-premises beer and

wine permit.

• Mister Reese appeared at the hearing and testified that he opposes the sale of

alcohol in this and other nearby locations. Mister Reese owns property at 2014 Assembly Street, which is approximately a half block from the Petitioner's location. Mister Reese believes that the sale of alcohol in this and other nearby locations contributes to a trash problem on his property caused by sales to individuals who live at the Salvation Army Building next door.

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 an off-premises beer and wine permit is consistent with the character of the area.

• 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 this area, believing it contributes to a trash problem on his property. The Protestant was unable, however, to confirm that the trash on his premises came from Petitioner's store or other nearby stores. This belief is 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. Petitioner only needs to satisfy the legislative requirements in order to obtain a beer and wine permit which, would require a showing that the location is suitable.

• 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 safety of residents in the area, create traffic problems, or have an adverse impact on the community. Any issue relating to the residents at the Salvation Army and their behavior at adjoining businesses and properties is best left to the City of Columbia to address. 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 Nige Heath to Market Express of Elmwood, Inc., d/b/a Market Express No. 704, 1027 Elmwood Avenue, Columbia, South Carolina, upon payment of the appropriate fees.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

November 13, 2002

Columbia, South Carolina