ORDERS:
ORDER AND DECISION
This matter came before the Administrative Law Judge Division
upon the application of Sarilla B. Cosgrove on behalf of Piedmont
Petroleum Corporation for an off-premises retail beer and wine
permit for the Corner Mart Food Store to be located at 2600 Locust
Hill Road in Taylors, South Carolina. After notice to all the
parties, a hearing was conducted on May 11, 1994. The file of the
Department of Revenue and Taxation was made a part of the record
without objection. A copy of the file is substituted for the
original. Based upon the testimony and evidence presented, I make
the following:
FINDINGS OF FACT
1. The applicant, Sarilla B. Cosgrove, is over the age of
twenty-one and has been a resident of South Carolina since 1976.
She is the vice-president of Piedmont Petroleum Corporation which
she owns with her husband, Kenneth Cosgrove.
2. Piedmont Petroleum owns and/or operates several
convenience stores throughout South Carolina and Georgia. Several
of the locations are licensed to sell beer and wine for off premise
consumption.
3. The Corner Mart in Taylors is currently under
construction as an Exxon gas station and convenience store located
between Travellers Rest and Greer on Highway 290.
4. The area is a developing area with the recent addition of
the BMW automobile facility. The location is one-half mile from a
church and approximately three-tenths of a mile from the proposed
location of Greenville Tech. Blue Ridge High School is located at
least one mile away. Foothills Vocational School is several miles
from the location. None of the schools or churches are protesting
the application.
5. The location would be constructed and marketed in the
same manner as other gas station/convenience stores. The sale of
beer and wine would not be advertised. The building would be in
the center with gasoline pumps located on both sides of the
building. This configuration reduces the ability of people to
loiter in the area.
6. Several licenses have been issued on behalf of the
corporation none of which have been suspended or revoked.
7. A comprehensive training program has been adopted by the
corporation to train employees on the laws governing the sale of
beer and wine. The training includes not only films but written
tests. Daily and periodic reminders prohibiting the sale to
underage persons and reminding employees of their duties with
respect to the sale of beer and wine are posted in the store.
Violation of company policy regarding the sale of alcoholic
beverages may result in immediate discharge.
8. Although the police district area encompasses over 200
square miles, there is adequate police protection for the area.
9. Notice of the application was published in the Greenville
News and posted on the premises for the time period prescribed by
law.
10. There are several other locations within a five mile
radius that sell beer and wine for off premise consumption.
11. The application was protested by a resident on the basis
that there was not adequate police protection, the location would
be a great temptation to high school students passing the store,
that traffic would increase, and on the problems associated with
alcohol and traffic accidents. Although the witness was credible,
little weight is accorded his testimony in light of the lack of
advertising for the sale of beer and wine for the location, the
constant patrol of police in the district area, and the store is
located on a route already heavily travelled.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division is vested with the
powers, duties and responsibilities exercised by the former
Alcoholic Beverage Control Commission and hearing officers pursuant
to Chapter 23 of Title 1. S.C. Code of Laws § 61-1-55 (Supp.
1993).
2. S.C. Code § 61-9-320 (Supp. 1993) provides the statutory
requirements for this issuance of beer and wine permits. It states
in part:
No permit authorizing the sale of beer or wine
may be issued unless:
...
(6) The location of the proposed place of
business of the applicant 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.
S.C. Code § 61-9-320 (6) (Supp. 1993).
3. Although "proper location" is not statutorily defined,
"rather broad discretion is vested in the Commission in determining
the fitness or suitability of a particular location." Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This
determination of suitability is not solely a function of geography,
but involves an infinite variety of considerations related to the
nature and operation of the proposed business and its impact upon
the community where it is to be situated. Kearney v. Allen, 287
S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel v. S.C. ABC
Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).
4. In addition, proximity of a location to a church, school,
playground, or residence is a proper ground, by itself, on which
the location may be found unsuitable for a permit to sell beer and
wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653
(S.C. 1991). There were no protests by any of these entities.
5. The applicant meets the statutory requirements for the
issuance of an off-premise retail beer and wine license. The
location is a suitable one. It is located in a developing area of
Greenville County; it is not in close proximity to any churches,
schools or playgrounds; the corporation has a comprehensive
training program and enforcement policy regarding the sale of
alcoholic beverages; and there is adequate police protection.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is
ORDERED, that the applicant, Sarilla B. Cosgrove and Piedmont
Petroleum Corporation are entitled to the issuance of an off-premise retail beer and wine permit. The Department shall issue
the permit upon the payment of the appropriate fees.
AND IT IS SO ORDERED.
_________________________
ALISON RENEE LEE
Administrative Law Judge
June __, 1994
Columbia, South Carolina |