South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
The Pantry, Inc., d/b/a Smokers Express #3485 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
The Pantry, Inc., d/b/a Smokers Express #3485
927 Elmwood Ave., Columbia, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0388-CC

APPEARANCES:
Petitioner & Representative: The Pantry, Inc., d/b/a Smokers Express #3485, 927 Elmwood Ave., Columbia, SC, Walter B. Todd, Jr., Esquire

Respondent & Representative: South Carolina Department of Revenue, Nicholas P. Sipe, Esquire

Parties Present: Petitioner present, Respondent excused, Protestants present.
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case



The Pantry, Inc., d/b/a Smokers Express #3485 (Smokers Express) filed with the South Carolina Department of Revenue (DOR), an application for a renewal of an off-premises beer and wine permit for 927 Elmwood Avenue in Columbia, South Carolina. A valid protest was filed pursuant to S.C. Code Ann. § 61-4-525 by Jesse T. Reese, III seeking to prevent DOR from granting the renewal. The protest resulted in a contested case before the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2001), 1-23-600(B) (Supp. 2001) and 1-23-310 (Supp. 2001).



Not all of the requirements for obtaining a beer and wine permit are disputed. Rather, the granting or denying of the permit turns upon the disputed matter of whether Smokers Express is a proper location. Based on the evidence and relevant factors of this case, the renewal of the off-premises beer and wine must be granted.



II. Issue



Does Smokers Express meet the requirements for an off-premises beer and wine permit in light of an allegation that the location is improper?



III. Analysis



Proper Location



1. Positions of Parties



Smokers Express asserts it meets the statutory requirements. DOR states it would have granted the permit but for the filing of a protest asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. The protestant asserts the permit should be denied since the location is not suitable.



2. Findings of Fact



Based on the preponderance of the evidence, the following findings of fact are entered:



A. General Facts of Location



On or about July 30, 2002, Smokers Express filed a renewal application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI # 32025655-7. Jesse T. Reese, III challenged the application resulting in a hearing for this dispute held on Wednesday, November 6, 2002, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.



The business (and the place where the beer and wine permit will be utilized) is located at 927 Elmwood Avenue, Columbia, SC. The business is a service station and convenience store. The operation does not provide seating nor does it provide music, either recorded or live.



B. Specific Facts of Location



1. Statutory Proximity Factors

Park Street Baptist Church is in the area. The church has experienced litter problems with the litter consisting of cans and bottles as well as paper wrappings. No testimony of residents who live in the area was presented.



2. Other Factors



No records of law enforcement officials were introduced to show incidents of crime occurring in and around the proposed location. Likewise, no evidence of drug activity was established nor was any evidence shown that the traffic routes are inadequate for the proposed location.



The business fronts on Elmwood Avenue, a highly commercial multi-lane highway. A commercial establishment, the Atlantic Coast Life Insurance Company, is next door to Smokers Express. In addition, the surrounding area includes the nearby businesses of Chuck Ruff Realty, Darnell Company, Inc., Bojangle's Restaurant, and McDonald's.



In addition, granting the renewal does not place a beer and wine permit in area devoid of alcohol. Indeed, a Hess service station (a location also on Elmwood and on the same side of Elmwood as Smokers Express) is a block away and that location holds an off-premises beer and wine permit. Thus, the addition of an off-premises beer and wine permit at the proposed location will not change the character of the area.



Here, the proposed location has been previously operated as a convenience store with an off-premises beer and wine permit since at least 1995. During that period of prior operation, the evidence does not reveal any alcohol citations issued at the location.



Evidence exists that the area is frequented by individuals who have living quarters at a Salvation Army facility one block away from the proposed location. The Salvation Army facility is next door to a commercial location at which Jesse Reese operates his business. That business is frequently a location in which extensive trash and litter are deposited. The supposition is that the residents of the Salvation Army facility are responsible for that litter.



3. Conclusions of Law



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



A. Law of Location Applied to Location Facts



Under S.C. Code Ann. § 61-4-520 (Supp. 2001), no beer and wine permit may be granted unless the location of the place of business is a proper location. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).



The proximity of the location to residences, churches, schools, and playgrounds is a proper consideration. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). However, the evidence here does not establish that the proposed location is within an improper proximity to churches, schools, residences, or playgrounds.



Indeed, while one church, Park Street Baptist Church, is nearby, no persuasive evidence establishes that the proposed business interferes with the worship activities of the church. While trash occurs on the church property, several businesses selling fast food and snack food are in the area as well as at least one other service station selling beer and wine. Thus, the litter cannot be conclusively linked to Smokers Express. Accordingly, no persuasive basis exists to deny the renewal due to improper proximity to any of the protected institutions of churches, schools, residences, or playgrounds.



A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon law enforcement. For example, evidence that granting the permit will place a strain upon police to adequately protect the community can be a factor. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). Likewise, evidence of insufficient police to cover the location can also be a factor. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).



Here, no persuasive evidence establishes a significant presence of crime in the area since no records of law enforcement officials were introduced to show incidents of crime occurring in and around the proposed location. Likewise, no evidence of drug activity was established.



Another valid consideration is the extent to which the highway traffic presents a location that creates a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Again, the evidence in this case does not establish that the traffic routes of Elmwood Avenue and Park Street are inadequate for the proposed location.



A valid consideration is whether the surrounding area is substantially commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). In this case, the business fronts on a highly commercial street, Elmwood Avenue. Just next door is a commercial establishment, the Atlantic Coast Life Insurance Company and in addition, the surrounding area includes the nearby businesses of Chuck Ruff Realty, Darnell Company, Inc., Bojangle's Restaurant, and McDonald's. Thus, overall, the area is primarily commercial in nature.



Consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, a Hess service station a block away holds an off-premises beer and wine permit. That location is also on Elmwood and is on the same side of Elmwood as is Smokers Express. Thus, the addition of an off-premises beer and wine permit at the proposed location will not change the character of the area.



A relevant factor is whether in the recent past beer and wine have been sold at the same location by former owners and whether the evidence shows that the location is now any less suitable than during the former time period. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, the proposed location has been previously operated as a convenience store with an off-premises beer and wine permit since at least 1995. During that period of prior operation, the evidence does not reveal any alcohol citations issued at the location. Thus, such a past history weighs heavily in favor of granting the renewal.



The presence of litter from a beer and wine location can be a relevant consideration. Certainly, evidence exists in this case that the area is frequented by individuals who have living quarters at a Salvation Army facility one block away from the proposed location. The Salvation Army facility is next door to a commercial location at which Jesse Reese operates a business. That business is frequently a location in which extensive trash and litter are deposited. The supposition is that the residents of the Salvation Army facility are responsible for that litter.



However, the presence of litter is not a sufficient basis for denying the permit. Indeed, just as with the presence of litter on the church grounds of Park Street Baptist Church, no persuasive evidence establishes that the trash results from the proposed location. Rather, several businesses selling fast food and snack food are in the area as well as at least one other service station selling beer and wine. Thus, the litter cannot be conclusively linked to Smokers Express.



B. Ultimate Conclusion as to Location



I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to residences, schools, churches, and playgrounds. Further, other location factors do not provide a basis for denying the requested renewal of the beer and wine permit. Accordingly, the renewal application for Smokers Express seeks an off-premises beer and wine permit for a location that is a proper location.



IV. Order



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

DOR is ordered to grant the renewal application of Smokers Express for an off-premises beer and wine permit at 927 Elmwood Avenue, Columbia, South Carolina.



AND IT IS SO ORDERED.



_________________________________

RAY N. STEVENS

Administrative Law Judge



Dated: November 19, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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