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 contested case hearing. The Applicant, Vickie L. Keys, seeks an off-premise beer and wine permit
for Dollbaby's Variety Store. A hearing was held on July 26, 1995, at the office of Administrative
Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The Permit requested by the Applicant is denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, Protestants, and South Carolina Department
of Revenue and Taxation.
2. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp.
1994) concerning the residency and age of the Petitioner are properly
established. Furthermore, the Petitioner has not had a permit or
license revoked within the last two years and notice of the application
was lawfully posted both at the location and in a newspaper of
general circulation.
3. The Petitioner seeks an off-premise beer and wine permit for
Dollbaby's Variety Store ("Store") located at 2526 Read Street,
Columbia, South Carolina. The Petitioner rents the Store and does
not live in the area of the Store's location.
4. The Petitioner seeks this beer and wine permit in a primarily
residential area that the Petitioner admitted is a "rough" area. In fact,
residential apartments occupy the remaining rental space of the
Respondent's proposed location. The area is often congested with
both people and car traffic. Residents commonly loiter around the
streets and surrounding businesses. Drug activity is prolific in the area.
Additionally, assaults and domestic violence frequently occur in the
surrounding community.
5. The Trinity Baptist Church is located on the same city block as the
proposed location. The Church has acquired, and is in the process of
acquiring, several additional lots on that block. Eventually, the Church
intends to build a new sanctuary which may face Read Street.
Furthermore, the United House of Prayer is located 448 feet from the
Store.
6. There are currently considerable efforts being made to re-develop this
area into a family community setting. The Columbia Community
Development Corporation plans to spend between 4 to 6 million
dollars to purchase the vast majority of the property located on the
adjacent city block to the Respondent's proposed location. That newly
developed block will be sub-divided to create 16 lots upon which the
Development Corporation will build family residences. See,
Respondent's Exhibits 2 and 3 (area shaded green). Additionally,
retirement homes are to be built across from the re-developed area
(approximately 450 feet away) and in the small city block diagonally
across from the location. Id.
7. The proposed location is unsuitable for a beer and wine permit
because of its proximity to the churches and residences, the
unacceptable burden upon law enforcement to police the location,
and the resulting negative impact that would occur upon the local
community.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) 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. 1994) grants to the Administrative
Law Judge Division the powers, duties and responsibilities as hearing
officer in protested and contested matters governing alcoholic
beverages, beer and wine.
3. S.C. Code Ann. § 61-9-320 (Supp. 1994) sets forth the requirements
for the issuance of an off-premise beer and wine permit.
4. Although "proper location" is not statutorily defined, broad discretion
is vested in the trier of fact in determining the fitness or suitability of
a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595,
281 S.E.2d 118, 119 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed business location
of a Petitioner for a permit to sell beer and wine using broad, but not
unbridled, discretion. Byers v. South Carolina ABC Commission, 281
S.C. 566, 316 S.E.2d 705, (Ct. App. 1984).
6. The determination of suitability of location is not necessarily a
function solely of geography. It involves an infinite variety of
considerations related to the nature and operations of the proposed
business and its impact upon the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335, (1985).
7. 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 state's police power to be used and enjoyed only so
long as the restrictions and conditions governing them are followed.
Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26 S.E.2d 22 (1943).
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED AND ADJUDGED that the application of Vickie L. Keys for this off-premise
beer and wine permit be denied.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
August 30, 1995 |
