South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Sarilla B. Cosgrove and Piedmont Petroleum Corp. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Sarilla B. Cosgrove and Piedmont Petroleum Corp.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-0046

APPEARANCES:
n/a
 

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


Brown Bldg.

 

 

 

 

 

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