ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to a circuit court remand order and S.C. Code Ann.
§ 61-1-55 (Supp. 1994) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1994),
regarding a protested renewal application for an off-premises beer and wine permit for 706 Green
Avenue, Greenville, South Carolina. A hearing was held on September 12, 1995, at Greenville
Technical College, Greenville, South Carolina.
Pursuant to the Order of The Honorable Charles B. Simmons, Jr., dated March 13, 1995,
and agreement of the parties, the hearing was conducted in two phases. The first issue considered
was whether Petitioner had satisfied the permit restrictions placed upon his permit by Order of
ABC Hearing Officer R. Scott Sprouse, dated December 30, 1993, which required Petitioner
within ninety days of the date of the Order to remove debris from the rear of the licensed premises
and erect a barrier to prevent vagrants from entering or exiting the licensed premises except from
the front of the premises.
After hearing evidence and finding that Petitioner substantially met the restriction
requirements, a de novo contested case hearing on the renewal was conducted. After a careful
review of the evidence and the applicable law, the renewal permit is issued with restrictions.
FINDINGS OF FACT
A. PROCEDURAL HISTORY
By a preponderance of the evidence, I find:
(1) Petitioner seeks renewal of an off-premises beer and wine permit, BG #18799, for a
location at 706 Green Avenue, Greenville, South Carolina, having filed a renewal application
received by the South Carolina Department of Revenue and Taxation (hereinafter referred to as
"DOR") on October 26, 1993.
(2) Green Avenue Area Association (hereinafter referred to as "GAAA") filed a written
protest to the renewal, and a contested case hearing was conducted before ABC Hearing Officer
R. Scott Sprouse on December 17, 1993.
(3) Hearing Officer Sprouse rendered an Order dated December 30, 1993, which ordered:
[T]hat the off-premises beer and wine permit of Douglas Foster
be renewed under the following conditions:
1. That the old tires and debris at the rear of his property be
removed.
2. That he erect a barrier which prevents vagrants from
entering or exiting his property except by way of the
front of the store.
3. That the licensee will have ninety (90) days to complete
these conditions.
(4) GAAA appealed the December 30, 1993 Order to the South Carolina Tax
Commission, and a hearing was conducted before the Commission on August 2, 1994. In an
Order dated September 7, 1994, the Commission affirmed Hearing Officer Sprouse's Order.
(5) GAAA appealed the Tax Commission's Order to the Circuit Court of Greenville
County. A hearing was conducted by The Honorable Charles B. Simmons, Jr., with an Order of
Remand, dated March 13, 1995, issued by Judge Simmons. The March 13, 1995 Order provides:
[T]he Court remands this case to the Administrative Law Division
[sic] with instructions that it hear the case de novo and issue an
order based on its evaluation of the evidence as presented in that
proceeding. On remand, the Administrative Law Division [sic] is
further instructed to first hear limited factual testimony or evidence
pertaining to whether the applicant has satisfied the conditional
requirements of the Renewal Order retroactive to December 30,
1993 and to issue an order corresponding to its findings an that issue.
(6) Pursuant to Judge Simmons' March 13, 1995 Order of Remand, a two-phase hearing
was conducted by this Court on September 12, 1995.
(7) Notice of the time, date, place, and subject matter of the hearing was given to all
parties.
B. PHASE I: ISSUE OF WHETHER PETITIONER MET CONDITIONAL REQUIREMENTS OF HEARING OFFICER SPROUSE'S DECEMBER 30, 1993 ORDER
(1) The licensed premises is rectangular in shape and situated on Green Avenue, bounded
by the road at the front of the property, a wire fence and residence at the rear of the property, a
parking lot and auto repair garage on one side, and a hedgerow and embankment bordering a
railroad track on the opposite side.
(2) All old tires and other debris were removed from the rear of the licensed premises on
or within ninety (90) days of December 30, 1993.
(3) Petitioner has kept the rear of the licensed premises clear of trash and debris since
March 1, 1994.
(4) A wire fence, approximately four feet (4') in height, was erected along the rear
property boundary within ninety (90) days of December 30, 1993.
(5) The renewal license restrictions contained in Hearing Officer Sprouse's December 30,
1993 Order did not set forth specifications for the type, height, length, or material of the barrier to
be erected.
(6) Petitioner, in good faith, substantially complied with the renewal license restrictions
contained in Hearing Officer Sprouse's December 30, 1993 Order.
(7) In spite of the wire fence erected along the rear property boundary and the hedgerow
along the railroad right-of-way, persons are still able to enter and exit the licensed premises from
the side and rear of the premises.
C. PHASE II: DE NOVO HEARING ON RENEWAL
(8) The parties stipulated at the hearing that the sole issue in controversy is the suitability
of the licensed location.
(9) DOR has no objection to the issuance of the renewal permit and would have issued
the renewal except for the protest received which precipitated a contested case hearing.
(10) Petitioner has operated and managed the licensed location as a grocery store since
1982, selling canned goods, produce, deli items, and other groceries.
(11) Petitioner has held an off-premises beer and wine permit for the location since 1982.
(12) Beer and wine sales comprise approximately 25% of Petitioner's total grocery sales.
(13) Petitioner has never been cited for any violation of alcoholic beverage laws.
(14) The Green Avenue area of Greenville, in which the licensed location is situated, is a
mixed residential and commercial urban neighborhood.
(15) The Green Avenue area is a high crime area, with burglaries, shootings, and drug-
related crimes committed.
(16) The Green Avenue area has been undergoing redevelopment and revitalization,
predominately in the form of new construction of owner-occupied family dwellings.
(17) The GAAA opposes the renewal of Petitioner's permit because of concerns that the
sale of beer and wine at the licensed premises contributes to loitering and crime in the
neighborhood.
(18) The GAAA opposes the renewal of Petitioner's permit because it considers the sale
of beer and wine at the licensed location to be in conflict with revitalization efforts in the area.
(19) The GAAA opposes the renewal of Petitioner's permit because of concerns that
loitering on and around the licensed location contributes to the crime problem in the
neighborhood.
(20) Petitioner has cooperated with law enforcement in an attempt to mitigate problems
in the area.
(21) There are at least seven (7) other licensed locations within approximately ten (10)
blocks of the Petitioner's premises.
(22) The crime problems which currently exist in the Green Avenue area would exist
regardless of whether the licensed location continued to sell beer and wine and whether the
location was open or closed for business.
(23) Loitering problems in the rear of the licensed premises could be mitigated by taking
further efforts to make access to the rear of the property more difficult.
(24) More substantial barriers than currently exist are required to effectively prevent
persons from gaining access to the rear of the licensed premises.
(25) No access barrier is feasible along the property line which adjoins the parking lot and
auto repair garage.
(26) Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained his principal residence in South Carolina for more than thirty days.
(27) Petitioner has not had a permit/license revoked.
(28) Petitioner, who is the manager, is of good moral character.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) This case was referred to the Administrative Law Judge Division for hearing pursuant
to Judge Simmons' March 13, 1995 Order of Remand.
(2) S.C. Code Ann. § 61-1-55 (Supp. 1994) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(3) A hearing is required when the issuance of a renewal permit is protested by one or
more persons. 23 S.C. Code Ann. Regs. 7-90 (1976).
(4) S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(5) 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).
(6) 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).
(7) Petitioner is in substantial compliance with the renewal restrictions contained in the
December 30, 1993 Order of Special Hearing Officer R. Scott Sprouse; however, the condition
requiring the erection of a barrier contained in Hearing Officer Sprouse's Order is vague and
requires further specificity.
(8) Permits and licenses issued by the State for the 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).
(9) 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.
(10) The proposed location is suitable and proper, in light of the commercial nature of the
area, the nature of the business, the permittee's past history, and the restrictions on the permit
contained in this Order.
(11) Petitioner meets the statutory requirements for issuance and renewal of an off-premises beer and wine permit.
ORDER
IT IS THEREFORE ORDERED that the off-premises beer and wine permit renewal
application of Douglas Foster be granted, with the following restrictions and conditions, upon
Petitioner signing and filing a written agreement with DOR to adhere to the stipulations set forth
below and an upon inspection by DOR to assure that the conditions have been met:
(1) A chain link fence, at least seven feet (7') in height, topped
with barbed wire, must be erected along the rear boundary
of the licensed premises and along the side boundary of the
licensed premises which bounds the railroad right-of-way.
(2) "No Loitering" signs must be posted on the licensed premises.
(3) Outdoor lights must be installed to illuminate the outside of
the licensed premises during night hours and Petitioner must
continue to maintain and operate the lights.
IT IS FURTHER ORDERED that the above conditions and restrictions shall remain in
full force and effect during the entire effective period of this permit and subsequent renewals,
unless altered or amended by order following a contested case hearing. A violation of any of the
above conditions is considered a violation against the permit and may result in a fine, suspension,
or revocation.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 29, 1995
Columbia, South Carolina |