SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55, et seq. (Supp. 1994) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 1994) for a hearing pursuant to the application of Kelvin and Crystal Shoebrook, d/b/a K and C Grocery, ("applicant") for an off-premise beer and wine permit (AI 103310) at 261 Caulder Avenue, Spartanburg, Spartanburg County, South Carolina ("location").

A hearing was held on August 30, 1995, at the Administrative Law Judge Division Offices, Columbia, South Carolina. The Southside Neighborhood Action Partnership ("protestant") was represented by its executive director, Hudson Barksdale, as spokesman and by its secretary and board member, Michael Fowler, each of whom testified against the issuance of the permit. The South Carolina Department of Revenue and Taxation ("Department") was not represented at the hearing and, as outlined in its pre-hearing statement, took no position on the issuance of the permit.

The issues considered were: 1) the suitability of the proposed location, and 2) the nature of the proposed business activity.

The application request by the petitioner is granted with restrictions.

EXHIBITS

Without objection, the certified portions of the Department's file sent to and received by the Administrative Law Judge Division were made a part of the record in this case. Further, Petitioner placed into the record, without objection, petitions signed by various patrons as Exhibit #1. The protestant placed into the record, without objection, as its Exhibit #1 a poster or map depicting the city of Spartanburg.

FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties, including the protestant.

3. The applicants are seeking an off-premise beer and wine permit for a convenience store located at 261 Caulder Avenue, Spartanburg, Spartanburg County, South Carolina.

4. Mrs. Shoebrook is thirty-six (36) years of age and her husband is thirty-five (35) years old.

5 Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Spartanburg Herald-Journal, a newspaper of general circulation in the local area where the applicants propose to engage in business.

6. 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.

7 The applicants have been legal residents of South Carolina for over thirty days and have maintained their principal place of abode in South Carolina for over thirty days.

8. The applicants are of good moral character. Neither of them have ever had a beer and wine permit revoked or suspended.

9. The applicants opened a convenience store at the location approximately five (5) months ago. Each assists in its operation and at least one of them is at the location at all times. Their present gross sales at the store are three thousand to three thousand three hundred dollars ($3000 to $3300) monthly.

10. The hours of operation at K and C Grocery are Monday through Saturday from 9:30 a.m. to 8:00 p.m. It is closed on Sunday.

12. The location is inside the municipal limits of Spartanburg, South Carolina, fronting on Caulder Avenue which is primarily residential in nature. Across Caulder Avenue

is a housing development as well as a park. Adjoining the location is Mary Wright Elementary School, separated partially by a fence.

12. There are no juke boxes, live bands, live entertainment, loud music, video machines, outside/exterior speakers or pool tables at the location.

13. The position of the protestant is that the general area where the K and C Grocery is located already has sufficient establishments where beer and wine may be purchased and further, that an additional outlet would be a detriment to the community, especially since a school, ball field and park are nearby. Further, members of the protestant object to beer and wine on moral grounds.

CONCLUSIONS OF LAW

Based upon the foregoing 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. 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. § 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.

4. S.C. Code Ann. § 61-3-440 (Supp. 1994) 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.

5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). 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). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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. 2d 335 (1985). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers v. South Carolina ABC Commission, 305 S.C. 243, 407 S.E. 2d 653 (1991).

6. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the granting of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 198 S.E. 2d 801 (1973). In this instance there was no specific or credible testimony that the granting of a permit to the applicants would have a detrimental impact on the community, or place any undue burdens on local law enforcement. Factors which weigh in favor of granting the permit are:

1. Crystal Shoebrook grew up in the neighborhood and went to school there, and her grandmother presently lives in the apartment complex across the street from the location.

2. Petitioners have operated the convenience store at its present location for some five to six (5-6) months without incident.

3. The location was permitted for off-premise beer and wine sales for many years as Mike's Market up to 1993.

4. The location has significant sales of food supplies without beer and wine sales.

5. Applicants are well-educated and have children of their own.

6. Applicants have no intention to put pool tables, video game machines, juke boxes or pin ball machines in the location.

7. The hours of operation at the store begin after children arrive at school. The store closes early in the evening and also on Sunday.

8. Both applicants are of good moral character.

9. There was no credible evidence that the location had any prior history of problems or violations.

7. S.C. Code Ann. §61-9-340 (Supp. 1994) states that upon a determination that an applicant meets the criteria set forth and has not misstated or concealed a fact in the application, the S.C. Department of Revenue and Taxation must issue the permit after payment of the prescribed fee.

8. 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.

9. 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).

10. Given the history of this location having a permit for many years with no evidence of any violations and considering the testimony of all the witnesses, it is concluded that the applicants have met their burden of proof in showing that they meet all of the statutory requirements for holding an off-premise beer and wine permit, that the proposed location is a proper one, and accordingly, the beer and wine permit should be granted.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Kelvin and Crystal Shoebrook d/b/a K and C Grocery for an off-premise beer and wine permit for the premises located at 261 Caulder Avenue, Spartanburg, Spartanburg County, South Carolina is granted with the following restrictions, 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. There will be no outside advertising of beer and wine at the location.

2. Applicants will ensure that no loitering or drinking occurs on the premises.

3. Applicants will ensure that no loud noise emanates from the location, unless it comes from vehicular traffic over which they have no control.

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 shall issue the permit upon payment of the required fees and costs by the applicants.

AND IT IS SO ORDERED.

______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

August 31, 1995