ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310
et seq. upon an application for an off-premises beer and wine permit for 2300 N. Beltline Blvd.,
Columbia, South Carolina, by David A. Tucker, d/b/a Corner Pantry, Inc. filed with the Department
of Revenue and Taxation (DOR). A hearing was requested by the applicant upon the receipt by DOR
of a written protest. A hearing was held on May 6, 1994, in accordance with the Administrative
Procedures Act with notice to all parties and protestants. The issues considered were the applicant's
eligibility to hold a permit; the suitability of the proposed business location; and, the nature of the
proposed business activity. From the evidence presented at the hearing, I find and conclude that the
applicant meets the statutory requirements to hold a beer and wine permit.
FINDINGS OF FACT
The applicant seeks an off-premises beer and wine permit for a location at 2300 N. Beltline
Blvd., Columbia, South Carolina, having filed an application with DOR, AI no. 97178, on
January 5, 1994.
Notice of the time, date, place, and subject matter of the hearing was given to the applicant,
protestants, SLED, and DOR. I find that the applicant is over twenty-one years of age, is a citizen
of the State of South Carolina, and has maintained his principal residence in South Carolina for more
than one year. The applicant has not had a permit revoked in the last two years. The applicant, who
intends to be the manager of the business, is of good moral character.
Notice of the application appeared in a newspaper of general circulation in the area of the
proposed location for three consecutive weeks and was posted at the proposed location for fifteen
days.
The following protestants appeared and testified in protest to the apllication: nearby residents
Amy W. Henderson, William Richardson, and William Hazelhurst.
The protestants testified that they opposed the issuance of the permit on the grounds that the
location and business activity were not suitable or proper. The basis of their concern was that the
proposed location was in close proximity to a residential area. They speculated that the sale of beer
and wine at the location would attract non-residents to the area who would possibly become
intoxicated and cause trouble in the neighborhood. There were no complaints regarding the
applicant's character or business practices.
The proposed location is at the intersection of Forest Drive and Beltline Blvd. in the City of
Forest Acres. It was a gas and convenience store with snacks available from vending machines
operated by Crown Stations, Inc. (Crown) for approximately ten years prior to Corner Pantry, Inc.
opening for business. The area is zoned commercial. On the other corners of the intersection are a
bank, a gas station, and an optician's office.
Crown was formerly bound by restrictive covenants from selling any food or beverages at the
location over the counter. By instruments dated October 22, 1993, and November 10, 1993, those
restrictions have been released by Crown and the City of Forest Acres.
Two establishments in close proximity to the location, Kroger Sav-On (across Beltline from
the location) and Eckerd Drugs (diagonally across the intersection in Richland Fashion Mall) currently
hold off-premises beer and wine permits.
Applicant has expended over $200,000.00 to renovate and remodel the location. The location
has sloped, landscaped barriers to separate it from the residential areas it borders. There are no
habitable dwellings on the lots immediately adjacent to the location.
Applicant currently holds beer and wine permits for five other locations of Corner Pantry, Inc.
and has never been cited for a violation.
Accordingly, I find the proposed location and business activity are suitable and proper for the
sale of beer and wine for off-premises consumption.
CONCLUSIONS OF LAW
S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge
Division is empowered to hear all cases previously heard by the former Alcoholic Beverage Control
Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
In regard to the issuance of beer and wine permits, S.C. Code §61-9-320 (Supp. 1993)
provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or shareholder, 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 citizen of this State and of the United States and has been
a citizen maintaining his principal residence in South Carolina for at least thirty days prior to
application;
(3) The applicant has not had a beer and wine permit revoked in the last two years;
(4) The applicant is twenty-one years of age or older;
(5) The location of the proposed place business is in the opinion of the department a proper
one. 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 its effective date;
(6) 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;
(7) Notice has been given by displaying a sign for fifteen days at the site of the proposed
business.
A permit must not be issued under S.C. Code §61-3-730 (Supp. 1993) if the applicant is not
a suitable person to be licensed; the place of business is not a suitable place; or a sufficient number
of licenses have already been issued in the State, municipality, or community.
The factual determination of whether or not an application is granted or denied is usually the
sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC
Commission, 317 S.E.2d 476 (S.C. App. 1984). As the trier of fact, an administrative law judge is
authorized to determine the fitness or suitability of the proposed business location of an applicant for
a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC
Commission, 316 S.E.2d 705 (S.C. App. 1984). It is also the fact finder's responsibility to judge the
demeanor and credibility of witnesses and determine the relevance and weight of any testimony and
evidence offered.
In determining whether a proposed location is suitable any evidence adverse to the location
may be considered. The proximity of a location to a church, school, or residences is a proper ground,
by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers
v. S.C. ABC Commission, ___ S.C. ___, 407 S.E.2d 653 (1991). The determination is not
necessarily a function solely of geography, however. It may involve an infinite variety of
considerations related to the nature and operation of the proposed business and its impact on the
community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 335 (1985).
S.C. Code §61-9-340 (Supp. 1993) states that upon a determination that an applicant meets
the criteria set forth above and has not misstated or concealed a fact in the application, DOR must
issue the permit after payment of the prescribed fee.
I conclude that the applicant meets the requisite standards for issuance of the permit
and/or license applied for.
IT IS THEREFORE ORDERED that DOR issue to the applicant an off-premises beer and
wine permit upon payment of the prescribed fee.
___________________________
STEPHEN P. BATES
Administrative Law Judge
May 11, 1994
Columbia, South Carolina |
