SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division pursuant to the application of Tammy McClure, d/b/a Handy Shop, ("applicant"), for an off-premise beer and wine permit for the premises located at 4811 Highway 11, Inman, South Carolina ("location").

A hearing was held on November 17, 1994, at the Spartanburg County Courthouse, Spartanburg, South Carolina. Notice of the time, place and nature of the hearing was timely given to the parties and Reverend Brice Blakeney and Reverend Eddie Saxon, protestants. The permit application was protested by the aforementioned ministers as well as members of their respective churches as to the applicant's eligibility to hold a permit and the nature of the proposed activity at the location. In addition to Reverends Blakeney and Saxon, Robert Smith and Lanier "Red" Hines testified in opposition to the permit application. None of the protestants wished to be made a party. The applicant, as did Kenneth Emory, James M. Swofford, Clyde Henderson, and Jonie Scruggs, testified on behalf of granting the permit.

The permit with restrictions is granted.

Without objection, copies of those portions of the South Carolina Department of Revenue and Taxation's ("Department") file set forth hereafter were made a part of the record:

1. Application for off-premises beer and wine permit

2. Affidavit of and publication notice in The Spartanburg Herald-Journal

3. One criminal history report

4. Sketch of the location

5. Protest letters and petitions

6. South Carolina Law Enforcement Division ("SLED") Investigation Report

The petitioner introduced the following exhibits which were made part of the record without objection:

1. Four (4) photographs of the inside of the location

2. Spartanburg County Tax Map Sheet 2-15

3. Petitions

4. Two (2) Photographs of the store in proximity to the churches

Also, Rev. Brice Blakeney, a protestant, introduced into evidence a poster of the location (with photographs attached), which was made a part of the record without objection.

SUMMARY OF THE EVIDENCE

The applicant testified she has been a resident of Fingerville in Spartanburg County, South Carolina for thirty-two (32) years. For the past eight (8) years she has worked in convenience stores all of which were licensed with off-premise beer and wine permits. She further stated that there had never been an ABC charge against any of those permits and that she is aware of the laws and regulations regarding ABC sales. She said she has never been arrested and has no criminal record. As to the location, she opened it in April 1994 as a convenience store, selling groceries. She leased the building for ten years from James M. Swofford.

She testified that the store is located at the intersection of Highway 11 and Rainbow Lake Road, with the Fingerville First Baptist Church on a corner, the Fingerville United Methodist Church on a corner, the store on a corner with a residence on the other. She wants to provide grocery sales, including the sale of beer and wine for off-premises consumption, and gasoline sales with daily hours of operation from 7:00 a.m. to 10:00 p.m., Monday through Saturday, closing on Sundays. However, she stated she was unable to have gas service provided by an oil company unless she obtained the permit requested herein.

James M. Swofford, the applicant's landlord who is 59 years of age and a lifelong resident of the Fingerville community, testified next. He stated that the applicant has been a good tenant and operates her business in a good, clean and wholesome fashion. He testified about the continuation of the business to be operated as a convenience store. He stated neither he nor any subsequent owner of a business there had a beer and wine permit. He stated he felt the permit should be granted.

Willies Jonie Scruggs, a resident of the Fingerville community since 1947, next testified that he buys grocery items at the location and is in favor of the issuance of the requested permit. He is a member of the Fingerville Baptist Church.

The next witness for the applicant, Kenneth Edward Enory, stated he has been a resident of the community for 58 years, is a member of the Fingerville Baptist Church, buys grocery items at the location and is in favor of issuance of the permit. He stated that a lot of people go to the store, and stated it will not interfere with the churches in any way.

The last witness to testify on behalf of the issuance of the permit, Clyde Henderson, a resident of Landrum who visits the store for purchases, stated it is convenient to people in the immediate locale and the applicant runs a clean store.

Rev. Brice Blakeney, pastor at the United Methodist Church, (which has 28-30 members) and a resident of the City of Spartanburg, testified his church meets only once a week for the Sunday morning worship service where 18-20 regularly worship. His objection was to its location, being across the road from both churches and also to additional traffic problems it will create at an already busy and dangerous intersection. He stated the location is on the crest of a hill on Highway 11, where traffic is fast. He stated it could create a more hazardous intersection.

John Robert Smith, a 70 year old resident of the community who lives 1 1/4 miles away from the location on Highway 11, stated the issuance of the permit would lower morals in the community and make the intersection more dangerous with cars entering and exiting Highway 11 onto Rainbow Lake Road. His concerns were similar to those of Rev. Blakeney.

Lanier ("Red") Hines, a seventy year old gentleman who lives approximately 1.3 miles from the location, testified to his membership in the Fingerville First Baptist Church, his objection to the sale of beer and alcohol on moral grounds and its closeness to the churches. He stated he is a friend of Mr. Swofford, knew Mr. Swofford's father who was a fine person during his lifetime in that he had been a member of his church and in his opinion would condemn the issuance of the permit.

He testified that he had no objection to the applicant. He did state that his church had services on Sunday morning, Sunday evenings and every Wednesday evening and also some youth services during the week. He said there are other places where beer and wine can be purchased.

Rev. Edwin C. Saxon, the last witness, testified he is the pastor of the Fingerville First Baptist Church and lives in the parsonage behind the church with his wife and two small children (ages nine and three). His objection was to the location, it being located at a hazardous intersection, the close proximity to the churches and the potential display of beer signs. He also stated he appeared as a citizen and representative of approximately 90-95 percent of the membership of his church.

FINDINGS OF FACT

By a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. The applicant is seeking an off-premise beer and wine permit for a convenience store located at 4811 Highway 11, Inman, Spartanburg County, South Carolina.

3. The store is located in a rural residential area.

4. The applicant is of good moral character.

5. The applicant has been a legal resident of South Carolina for over thirty days and maintained her principal place of abode in South Carolina for over thirty days.

6. The applicant has never had a beer and wine permit revoked.

7. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Spartanburg Herald-Journal, a newspaper of general circulation in the local area where the applicant proposes to engage in business and was posted at the proposed location for fifteen (15) days..

8. The applicant intends to operate a convenience store at the location Monday through Saturday between the hours of 7:00 a.m. and 10:00 p.m.

9. The applicant is over twenty-one (21) years of age.

10. The applicant and her intentions to provide a convenience store to the residents of the Fingerville community in Spartanburg County are credible. Further, the applicant has had no disturbances at the store since it opening.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. Section 1-23-600 (Supp. 1993) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. CODE Ann. Section 61-1-55 (Supp. 1993) grants to the Administrative Law Judge Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C. CODE Ann. Section 61-9-320 (Supp. 1993) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

4. A permit or license must not be issued if an applicant does not meet the standards of S.C. Code Ann. § 61-3-730 (Supp. 1993).

5. As 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).

6. 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 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).

7. 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

8. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

9. S.C. Code Ann § 61-3-440 states that the Department shall not issue certain licenses to a place of business within a certain distance of a church; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.

10. The applicant meets the statutory requirements for the issuance of a beer and wine permit and such should be granted.

ORDER

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

ORDERED that the off-premises beer and wine permit application of Tammy McClure be granted, with the following restrictions and conditions, upon the applicant signing a written agreement to be filed with DOR to adhere to the stipulations set forth below:

1. Tammy McClure and her employees shall prohibit loitering and the consumption of beer or wine in the parking lot of the proposed location and strictly enforce the prohibition.

2. The hours of operation will be Monday through Saturday from 7:00 a.m. to 10:00 p.m.

IT IS FURTHER ORDERED that a violation of the above conditions is considered a violation against the permit and may result in a fine, suspension, or revocation.

IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue the permit upon payment of the required fees and costs by the applicant.

AND IT IS SO ORDERED.

________________________________

Marvin F. Kittrell

Chief Administrative Law

Columbia, South Carolina