South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Douglas Foster, d/b/a Thriftway Supermarket vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Douglas Foster, d/b/a Thriftway Supermarket

Respondents:
South Carolina Department of Revenue

Intervenor-Protestant:
Ten Oaks Vicinity Concerned Citizens

Protestant-Intervenor:
Green Avenue Area Association
 
DOCKET NUMBER:
95-ALJ-17-0412-CC

APPEARANCES:
Charles Groves, Attorney for Petitioner;

Arlene D. Hand, Attorney for Respondent;

Robert Jenkins, Attorney for Protestant-Intervenor.
 

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


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court