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. (Rev. 1986 and Supp.
1993) for a hearing pursuant to the application of Aaron T. Strong, Strong - Smith, Inc., d/b/a The
Filling Station, ("applicant") for an off-premises beer and wine permit (AI-100150) at 1700 E. North
Street, Greenville, Greenville County, South Carolina ("location").
A hearing was held on February 17, 1995, at the Administrative Law Judge Division hearing
room, Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina. Notice of the
time, date, place and nature of the hearing was timely given to all parties including the protestants.
The issues considered were: 1) the suitability of the proposed location, and 2) the nature of the
proposed business location.
The application was protested by the Reverend James R. Thomason of the Overbrook Baptist
Church and Reverend Eugene B. Young of the Seventh Day Adventist Church, with only Reverend
Thomason appearing and testifying. Reverend Thomason did not wish to be made a party.
The application requested by the Petitioner is granted with restrictions.
EXHIBITS
Without objection, copies of portions of the department's file as well as the
following were made a part of the record:
1. plat of the area
2. three photographs showing the location
3. letter of the South Carolina Department of Revenue and Taxation dated September
20, 1994 granting off-premises beer and wine permit to Randy Hester.
4. photograph of Overbrook Baptist Church
STIPULATIONS
Applicant and the Department stipulated that the law in South Carolina prohibits curb-service sales of beer and wine.
Applicant further stipulated to no visible exterior beer or wine advertising and to close the
location on Sundays.
FINDINGS OF FACT
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 1700 East North Street, Greenville, Greenville County, South Carolina.
3. The applicant is over twenty-one (21) years of age.
4. Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Greenville News, 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. Presently, there is a convenience store operational at the location with no alcoholic
permit or license.
9. The applicant has never had a beer and wine permit or mini-bottle license revoked.
10. The applicant intends to operate a convenience store at the location on 1700 East
North Street, Greenville, South Carolina between the hours of 7:00 a.m. and 10:00 p.m. Monday
through Saturday; the store will be closed on Sundays.
11. Although there are schools, playgrounds and churches within walking distance of
the proposed location, there was no credible evidence presented that the sale of beer and wine at
this location for off-premise consumption would create any problems or be a detriment in the
immediate community.
12. There are no juke boxes, video machines or live music/bands at the location.
13. The proposed location is within the municipal boundary of Greenville, located in a
mixed commercial and residential area.
14. The applicant is the sole stockholder of Strong-Smith, Inc.
15. By Order dated November 11, 1993, John R. Ferguson, a special hearing officer
for the Alcohol, Beverage and Control Division of the Department, denied an off-premises beer
and wine permit request by this applicant; subsequent to that Order, the Department has approved
an off-premises beer and wine permit to Curtis Randy Hester for a convenience store on an
opposite corner from the location.
CONCLUSIONS OF LAW
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 which provides in part:
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 Sate 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.
The applicant meets all the statutory requirements set forth above and has made an
adequate showing on each of the above stated grounds for issuance of the permit.
4. 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).
5. 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.
6. S.C. Code Ann. § 61-5-200 and 23 S.C. Code Ann. Regs. 7-98 prohibit the
issuance of licenses or permits for on or off-premises consumption where the location would sell
alcoholic liquors, beer or wine on a drive-through or curb-service basis.
7. 23 S.C. Code Ann. Regs. 7-96 prohibits the hearing of an application for retail
beer and wine permit or an application for a retail off-premise beer permit when the location
involved has been declared by the Alcoholic Beverage Control Commission to be improper unless
and until the applicant can affirmatively show that some material change with respect to the
location has occurred, or unless otherwise ordered by the Alcoholic Beverage Control
Commission. The granting of a beer and wine permit to a convenience store across the street
from the location constitutes a material change to the location.
8. It is concluded that the applicant meets all of the statutory requirements for
holding a retail beer and wine permit and accordingly, I conclude that the proposed location is a
proper one for granting the beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Aaron T. Strong for an off-premises beer and wine
permit at 1700 East North Street, Greenville, Greenville County, South Carolina be granted,
with the following restrictions and conditions, 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. The location will not sell alcoholic liquors, beer or wine on a drive-through or
curb-service basis.
2. There will be no visible exterior beer or wine advertisements at the location.
3. The hours of operation will be from 7:00 a.m. to 10:00 p.m. Monday through
Saturday only. The location will be closed on Sundays.
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
March 1, 1995 |
