South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Billie R. Williams and Ethelene C. Williams, d/b/a Pic 'n Sav Food vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Billie R. Williams and Ethelene C. Williams, d/b/a Pic 'n Sav Food

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0423-CC

APPEARANCES:
Kenneth Allen, Attorney for Petitioner/Applicant

Rev. Ben Edwards, (pro se) Spokesperson for Protestants
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and

S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an

off-premises beer and wine permit for 112 Saluda Street, Ninety Six, South Carolina, by

Billie R. Williams and Ethelene C. Williams filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on March 7, 1995. The issues considered were: (1) the applicants' eligibility to hold a permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The permit application is denied.

DISCUSSION

The application under consideration in this case is for a beer and wine permit for off-premises consumption. The proposed location was previously denied a beer and wine permit for on-premises consumption after a May 4, 1994 hearing in the case of William Williams v. DOR, Docket Number 94-ALJ-0021, pursuant to my Order dated May 26, 1994. William Williams is the father and ex-husband of the current applicants, Billie R. Williams and Ethelene C. Williams,

respectively. Many of the same protestants who appeared and testified at the May 4, 1994 hearing also appeared and testified at the March 7, 1995 hearing.

At issue in the earlier case was the issuance of an on-premises beer and wine permit. I noted in the May 26, 1994 Order that a new application could be subsequently considered for an on-premises permit. On May 26, 1994, this Court specifically found and concluded that "... the proposed location and business activity are not suitable and proper as the location is in close proximity to residences and the facilities are inadequate for on-premises consumption. The issuance of a[n] on-premises beer and wine permit would have an adverse effect on the surrounding community." (p.3) The Order further stated that "...the proposed business activity, sale for on-premises consumption, is unsuitable in [light] of the facilities at the store and the past loitering, littering, drinking, and violence problems in the immediate area at the arcade." (pp.4-5)

The present applicants are the daughter and ex-wife of the previous applicant. The divorce settlement between Mr. and Mrs. Williams, which concluded on or about May 24, 1994, transferred the entire ownership of the proposed location to Mrs. Ethelene Williams, who in turn conveyed a 10% interest to her daughter, Billie R. Williams, in consideration of Billie acting as manager of the store. Billie Williams also managed the store while it was under the ownership and control of her father. Both of the present applicants were aware of the previous application filed by Mr. Williams.

"A court can take judicial notice of its own records, files, and proceedings for all proper purposes including facts established in its records." Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct.App. 1984). Accordingly, judicial notice is taken of the relevant evidence from the May 4, 1994 hearing and the May 26, 1994 Order rendered in the case of William Williams v. DOR, Docket No. 94-ALJ-0021. Findings regarding the past history of the proposed location and immediate surrounding vicinity and the physical location of the proposed location and its proximity to residences, churches, schools, and playgrounds established in the case of William Williams v. DOR, Docket Number 94-ALJ-0021, are conclusive in the absence of new evidence to the contrary. Changes in circumstances and conditions since the first Order and the difference in factors to be applied in issuing an off-premises beer and wine permit as opposed to an on-premises permit must also be considered, however.

Applicants offered evidence to show that the physical premises itself is designed and operated so as to be a suitable facility from which to sell beer and wine for off-premises consumption, whereas it was not suitable for on-premises consumption. The change in ownership and control of the proposed location and adjoining strip shopping center from Mr. Williams to the present applicants is also a positive change in circumstances. The opening of The Gingerbread House in the shopping center at the previous site of a video arcade is especially encouraging in light of past problems at the arcade such as loud music, litter, loitering, underage drinking, and public drunkenness and fights which required police attention.

Although applicants established several favorable changes in circumstances and conditions since this Court's previous Order, the proximity of the proposed location to residences, churches, schools, and playgrounds remains unchanged. Likewise, the residential nature of the surrounding neighborhood is the same as it was at the time of the first hearing. On those grounds, the permit application is denied.

The permit application is not denied on the basis of the religious or moral convictions expressed by the protestants. During the March 7, 1995 hearing and the previous hearing, numerous protestants offered testimony to the effect that Ninety Six is a very religious community and has no beer and wine outlets within its borders. Several clergy members testified that they opposed the sale and consumption of alcohol in any form, under any circumstances, and adamantly opposed the licensing of any location within the Town of Ninety Six. The Court respects the right of an individual or a congregation to abstain from the purchase and consumption of alcohol and to not be disturbed by those who do choose to buy and drink beer, wine, or liquor. Standards for judging the suitability of a proposed location for the sale of beer and wine, however, are not determined by a local community's religious convictions or moral litmus test. Criteria must be uniform, objective, constant, and consistent throughout the state. The sale of beer and wine is a lawful enterprise in South Carolina, as regulated by the State. This Court has neither the authority nor the inclination to conduct local referenda on whether a particular community is opposed in principle to the sale of alcoholic beverages. This Court must decide to issue or deny a beer and wine permit based solely upon the relevant facts and the applicable law.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) Applicant seeks an off-premises beer and wine permit for a location at 112 Saluda Street, Ninety Six, South Carolina, having filed an application with DOR, AI #99485.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicants, protestants, and DOR.

(3) The DOR file, AI #99485, containing the application and attachments, SLED investigative report and map, and the written protests filed with DOR in opposition to the application, is incorporated herein as part of the record of this matter.

(4) The proposed location has been previously denied a permit to sell beer and wine for on-premises consumption after a May 4, 1994 hearing in the case of William Williams v. DOR, Docket Number 94-ALJ-0021, pursuant to my Order dated May 26, 1994. The case file bearing Docket Number 94-ALJ-0021 is incorporated herein as part of the record of this matter.

(5) William Williams, the previous applicant, is the father and ex-husband of the current applicants, Billie R. Williams and Ethelene C. Williams, respectively. Pursuant to a divorce decree and property settlement between William Williams and Ethelene C. Williams entered on or about May 24, 1994, William Williams no longer has an interest or any control or management authority in the proposed location.

(6) Billie R. Williams has been the manager of the proposed location for approximately seven to ten years.

(7) Applicants were both aware of William Williams' application and May 6, 1994 hearing for a beer and wine permit.

(8) The proposed location is located within the town limits of Ninety Six in a mill village neighborhood.

(9) The proposed location is currently operating as a small neighborhood convenience and grocery store.

(10) Immediately adjacent to the proposed location is a small strip shopping center under the ownership or control of Applicants, containing several businesses which include a washeteria,

video rental store, and pizza restaurant. It also contains a business known as the Gingerbread House, which has opened since May, 1994.

(11) The Gingerbread house, an establishment primarily utilized for hosting children's parties, opened in the same location that a video arcade previously occupied.

(12) The video arcade, which closed in 1993, was the source of past problems in the neighborhood such as loud music, litter, loitering, underage drinking, and public drunkenness and fights which required police attention.

(13) Testifying in opposition to the application were: Dr. Gerald Robinson, Superintendent of Greenwood School District 52; Rev. Roy Burroughs, Pastor of Ninety Six Church of God; Rev. Calvin Holland, Pastor of First Baptist Church of Ninety Six; Nettie McCarty, resident of 125 Saluda Street, Ninety Six, across the street from the proposed location; Rev. Nelson Stokes, Pastor of St. Paul United Methodist Church; and, Rev. Ben Edwards, Pastor of Ninety Six Pentecostal Holiness Church.

(14) The applicants are over twenty-one years of age, are residents of the State of South Carolina, and have maintained their principal residences in South Carolina for more than thirty days.

(15) The applicants have not had a permit revoked in the last two years.

(16) At least eleven residences are located within approximately 500 feet of the proposed location.

(17) Ninety Six Pentecostal Holiness Church is located approximately 1104 feet from the proposed location.

(18) Temple Baptist Church is located approximately 660 feet from the proposed location.

(19) A new family life center has been constructed and is now in use at Temple Baptist Church within the last two to three months.

(20) Cambridge United Methodist Church is located approximately .3 miles from the proposed location. The parsonage is located next door to the proposed location.

(21) The Ninety Six Church of God is located one block from the proposed location.

(22) Three schools are within .5 miles of the proposed location.

(23) A playground is located approximately 500' from the proposed location.

(24) A baseball field is located less than a block from the proposed location.

(25) Numerous children live and play in the mill village neighborhood in which the proposed location is located.

(26) Applicants offered to stipulate that if the permit sought were issued, they would prohibit the consumption of beer and wine at the proposed location and the adjoining shopping center and that no arcade would be allowed to open in the shopping center.

(27) Applicants are of suitable character and temperament to hold a beer and wine permit.

(28) 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.

CONCLUSIONS OF LAW

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

(1) The South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and Chapter 23 of Title I of the 1976 Code, as amended.

(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met before issuance of a beer and wine permit.

(3) "A court can take judicial notice of its own records, files, and proceedings for all proper purposes including facts established in its records." Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct.App. 1984). Accordingly, judicial notice is taken of the relevant evidence from the May 4, 1994 hearing and the May 26, 1994 Order rendered in the case of William Williams v. DOR, Docket Number 94-ALJ-0021. Findings regarding the past history of the proposed location and immediate surrounding vicinity and the physical location of the proposed location and its proximity to residences, churches, schools, and playgrounds established in the case of William Williams v. DOR, Docket Number 94-ALJ-0021, are conclusive; however, evidence of changes in circumstances and conditions since the first Order and the difference in factors to be applied in issuing an off-premises beer and wine permit as opposed to an on-premises permit must also be considered.

(4) 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).

(5) The proposed location is unsuitable for the sale of beer and wine for off-premises consumption because of the residential nature of the community, and the proximity of residences, churches, schools and playgrounds. William G. Byers v. S.C. ABC Commission, ___ S.C ___, 407 S.E.2d 653 (1991).

ORDER

IT IS THEREFORE ORDERED that DOR deny the off-premises beer and wine permit applied for.

_______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

March 23, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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