South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Vickie L. Keys, d/b/a Dollbaby's Variety Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Vickie L. Keys, d/b/a Dollbaby's Variety Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0361-CC

APPEARANCES:
For the Petitioner: Kenneth E. Allen, Esquire

For the Respondent: Arlene D. Hand, Esquire

For the Protestants: Pro Se
 

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


Brown Bldg.

 

 

 

 

 

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