South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Mack E. Williams, Dadjim Enterprises, Inc., d/b/a Speedy Food Stores, III vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Mack E. Williams, Dadjim Enterprises, Inc., d/b/a Speedy Food Stores, III

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0268-CC

APPEARANCES:
For the Petitioner: Thomas J. Thompson, Esquire

For the Respondent/South Carolina Department of Revenue and Taxation: Unrepresented

For the Protestant: Vickie Cheyenne Workman (Spokesperson)
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann §§ 61-1-55, et. seq. (Supp. 1993) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1993) for a hearing pursuant to the application of Mack E. Williams, Dadjim Enterprises, Inc., d/b/a Speedy Food Stores, III ("applicant") for an off-premise beer and wine permit (AI 100242) for the premises located at the intersections of Highways 101 and 14, Gray Court, Laurens County, South Carolina ("location").

A hearing was originally scheduled for March 10, 1995, at Spartanburg, South Carolina but was continued upon Petitioner's request to obtain legal representation. It was rescheduled and the issues were heard on April 11, 1995, at the Administrative Law Judge Division, Columbia, South Carolina. Notice of the date, time, place and nature of the hearing was timely given to all parties of record, including the three protestants, Cheyenne Workman, Wendy M. Workman and Janice Kennett. All three protestants were present and testified. Reverend Kenneth Owens, one of several other individuals who appeared in support of the protestants' position testified also.

The issues considered were: 1) the suitability of the location, and 2) the nature of the proposed business activity. As outlined in its Pre-Hearing Statement, the South Carolina

Department of Revenue and Taxation ("Department") was not represented at the hearing nor did it make any objection to or contest the issuance of the permit.

The application request of the Petitioner is granted with restrictions.

EXHIBITS


Without objection from the Petitioner or the protestants, copies of those portions of the Department's file set forth hereafter were made a part of the record:

1. Application for off-premises beer and wine permit by Petitioner

2. Affidavit of publication of public notice in The Laurens County Advertiser

3. Articles of Incorporation, stock certificates and minutes of first meeting of Dadjim Enterprises, Inc.

4. State Law Enforcement Division's (SLED) investigation report

5. Criminal history reports

6. Protest letters from Cheyenne Workman, Wendy M. Workman, Janice Kennett and

Brian and Christy Meetze

7. Sketch of the location

The Petitioner, without objection from the protestants, placed into the record the following:

1. Eight (8) photographs of the location's interior and exterior areas.

2. Deed conveying the location property to the Petitioner and his son, Jimmy D. Williams, dated October 19, 1994.

3. Deed conveying the property adjoining the location to protestant Cheyenne Workman and Robert G. Workman, dated March 20, 1992.

4. Photograph of another convenience store owned by Petitioner showing CITGO signage on the exterior.

Also, the protestants placed into the record, over the objection of the Petitioner, several newspaper articles, and two letters together with various signed petitions protesting the permit issuance. Various photographs, a S.C. Highway Department daily traffic flow chart and a Laurens County Sheriff's office service calls printout were admitted into evidence without objection.

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 the intersection of Highways 101 and 14, Gray Court, Laurens County, South Carolina.

3. The applicant is over twenty-one (21) years of age and has not had an application revoked within the two (2) years preceding the date of the filing of this application.

4. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Laurens County Observer, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

5. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

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

7. The applicant is of good moral character.

8. The applicant has never had a beer and wine permit or mini-bottle license revoked.

9. A convenience store is presently in operation at the location with a temporary off-premise beer and wine permit.

10. The applicant intends to operate the convenience store at the location between the hours of 6:00 a.m. and 1:00 a.m. Monday through Friday, from 6:00 a.m. to 12:00 a.m. on Saturday and from 7:00 a.m. to 12:00 a.m. on Sunday.

11. The store is located in the Town of Gray Court in a rural area of Laurens County. Adjoining the store location and separated partially therefrom by a chain link fence and a white wooden fence is the residence of Cheyenne Workman and her husband. Wendy M. Workman, a Deputy Sheriff for Spartanburg County, lives there with her parents.

12. There are no juke boxes at the location.

13. The location is at a minimum 0.2 miles from the nearest church and 0.4 mile from the closest school.

14. Applicant and his son, Jimmy D. Williams, own Dadjim Enterprises, Inc. and operate, own and manage four (4) other convenience stores, three (3) of which have off-premise beer and wine permits. They intend to renovate this location; afterwards, its appearance will be similar to another of their stores as reflected in Petitioner's Exhibit #4. As part of the renovation, a door will be constructed in the store's back wall and the rear portion at the location will be paved.

15. Cheyenne Workman, Wendy Workman, Janice Kennett and Reverend Kenneth Owens, an associate pastor at Pleasant Grove Baptist Church, Fountain Inn, South Carolina, all testified, protesting the issuance of the permit. They took the position that drinking alcoholic beverages is morally wrong. Further, they protested to the beer and wine sales, alleging it contributes to loitering, littering and public urination outside the location, all of which they say occurred prior to and subsequent to Petitioner's purchase of the store. Photographs introduced by the protestants show litter at the location, and an individual consuming a beverage.

16. Protestants further took the position that the store is located at an intersection which is heavily travelled. Further, they stated that trucks stopping at the location unloading supplies, school buses loading and unloading children behind the store and vehicles entering and exiting the location will exacerbate the congestion problem.





17. There are two other retail stores in close proximity to this location which have an ABC license or permit; Ropers, which has an off-premise beer and wine permit, and a

retail liquor store. Various residences, business establishments and the town hall are also nearby.

18. Petitioner has a training program for all new employees, part of which encompasses instruction in ABC laws and regulations applicable to beer and wine sales. Also, each of Petitioner's stores are visited at different times daily by both Mack and Jimmy Williams to check on their operation.



CONCLUSIONS OF LAW


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

1. S.C. Code Ann. § 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. § 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) sets forth the requirements for the issuance of a beer and wine permit.

No permit authorizing the sale of beer or wine may be issued unless:

1. The applicant, any partner or co-shareholder of the applicant, 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 resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.

3. The wholesale applicant is a legal resident of the United States and has been a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4. The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

5. The applicant is twenty-one years of age or older.

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.

7. 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.

8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.

4. S.C. Code Ann. § 61-3-440 (Supp. 1993) states that the Department shall not issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.

5. 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. South Carolina 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.

6. Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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). 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. South Carolina ABC Commission, ____ S.C. ____, 407 S.E. 2d 653 (1991).

7. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the granting of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 198 S.E. 2d 801 (1973). In this instance, although there was testimony to some littering, possible traffic congestion, public alcohol consumption and public urination, the theme running throughout the protestants' testimony and objections to the issuance of the permit was the immorality of alcohol consumption. This is not a valid legal objection under our law. Further, testimony of the protestants as to any increased traffic congestion or endangerment to the public from beer and wine sales or parking of beer trucks at the location was conjectural, at best. Also, there was no evidence of any problems at the store.

8. Little weight as evidence was given to the protest letters of and petitions signed by individuals not present at the hearing since they were unavailable to offer testimony to their reasons for their protests nor were they available for cross-examination.



9. 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).

10. 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.

11. S.C. Code Ann. §61-9-340 (Supp. 1993) states that upon a determination that an applicant meets the criteria set forth and has not misstated or concealed a fact in the application, the S.C. Department of Revenue and Taxation must issue the permit after payment of the prescribed fee.

12. Given the history of this location previously holding a beer and wine permit with little or no problems being created for the neighborhood and after considering the testimony of the applicant and protestants, it is concluded that the application of the petitioner should be approved with the limitations as provided herein.

13. It is concluded that the applicant has met the burden of proof in showing that he meets all of the statutory requirements for holding an off-premise beer and wine permit

that the proposed location is a proper one, and accordingly, the beer and wine permit should be granted with restrictions.













ORDER

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

ORDERED that the application of Mack E. Williams, Dadjim Enterprises, Inc., d/b/a Speedy Food Stores III for an off-premise beer and wine permit for the premises located at the intersection of Highways 101 and 14, Gary Court, Laurens County, South Carolina is granted with the following restrictions, upon the applicant signing a written agreement to be filed with the South Carolina Department of Revenue and Taxation to adhere to the stipulations set forth below:

1. Mack Williams and Dadjim Enterprises, Inc. d/b/a Speedy Food Stores III and their employees and agents will prohibit loitering and the consumption of alcoholic beverages of any kind by their employees, agents, customers, patrons or guests in the parking lot areas or any exterior area at the location and will strictly enforce this prohibition.

2. No juke boxes, pool tables, live music or loud music will be allowed at the location.

3. Mack E. Williams and Dadjim Enterprises, d/b/a Speedy Food Stores, III and their employees and agents will patrol the exterior areas at the location to ensure customers, guests and patrons do not urinate outside.

4. Litter will be picked up in all exterior areas at the location at least once daily and more if necessary to maintain a clean exterior appearance.

5. Petitioner, within ninety (90) days of this order, will construct and extend the wooden fence presently located at the boundary of its property with Robert and Cheyenne Workman the entire length of the boundary .

IT IS FURTHER ORDERED that a violation of any one 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 Judge

Columbia, South Carolina

April 17, 1995


Brown Bldg.

 

 

 

 

 

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