South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Samuel R. Horne, Jr., d/b/a Rocky Mount Convenience Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Samuel R. Horne, Jr., d/b/a Rocky Mount Convenience Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0635-CC

APPEARANCES:
Marion H. Grier, Jr., Attorney for Petitioner

Rev. Michael Sollers, (pro se) Protestant
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1994) upon an application for an on-premises beer and wine permit for Route 1, Highway 21, at the intersection of Highway 21 and Catawba Road, Great Falls, South Carolina, in Fairfield County. A hearing was held on November 13, 1995. The issues considered were the suitability of the proposed business location for the sale of beer and wine and the suitability of the proposed business activity. The application for an on-premises beer and wine permit is hereby denied; however, Petitioner is granted leave to amend his application to one for an off-premises beer and wine permit. If so amended, the off-premises beer and wine permit is granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) Petitioner seeks an on-premises beer and wine permit for a location at Route 1, Highway 21, at the intersection of Highway 21 and Catawba Road, Great Falls, South Carolina, in Fairfield County, having filed an application with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"), AI #104663.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestant, and DOR.

(3) DOR did not appear at the hearing; however, DOR filed the following statement with the Court:

But for the unanswered question of suitability of

location, the Department would have issued this licenses/permit.

As the department has no evidence concerning suitability of this

location it does not intend to appear at the hearing. Its failure to

appear at the hearing does not indicate a waiver of its rights as a

party to this action, and is not to be considered a default under

Rule 23 of the Administrative Law Judge Division. If the

Petitioner appeals the Court's decision in this matter, and no

additional parties have been admitted, the department will

actively participate as a party in the appeal.

(4) The DOR file was incorporated into the record of the hearing.

(5) The proposed location is in unincorporated Fairfield County, located close to Lake Wateree in or near the Rocky Mount and Mitford communities, just South of the Chester and Lancaster County lines.

(6) The immediate area surrounding the proposed location is rural and residential in nature.

(7) Petitioner operates the proposed location as a convenience store, selling items such as soft drinks, bread, candy, cigarettes, fishing bait, and over the counter medicines. The location also has five video poker machines for use by patrons.

(8) Most patrons of the proposed location live outside of the Rocky Mount and Mitford communities.

(9) The proposed location intends to operate twenty-four hours a day, with the exception of being closed from 12:00 a.m. Sunday until 8:00 a.m. Monday.

(10) There are at least twenty residences within 1/2 mile of the proposed location.

(11) The proposed location was formerly known as the Rocky Mount Bait & Tackle Shop. Until approximately eight years ago, the location was licensed to sell beer and wine for off-premises consumption.

(12) There are six churches within the general area of the proposed location.

(13) 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 one year.

(14) Petitioner has not had a permit/license revoked in the last two years.

(15) Petitioner is of good moral character.

(16) Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:

(1) 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.

(2) 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.

(3) 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, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

(4) 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).

(5) The proposed location is unsuitable for the sale of beer and wine for on-premises consumption because of the residential nature of the community, the close proximity of residences and churches, the intended hours of operation of the business, and the convenience store nature of the business location. The proximity of residences or churches is a proper ground by itself to deny a permit to a location. William Byers v. S.C. A.B.C. Commission, 305 S.C. 243, 407 S.E.2d 476 (Ct. App. 1984).

(6) The predominately residential character of the immediate vicinity would be adversely affected by the on-premises sale and consumption of beer and wine on a twenty-four hour basis. Palmer v. S.C. ABC Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1985); Roche v. S.C. ABC Commission, 263 S.C. 451, 211 S.E.2d 243 (1975).

(7) Although unsuitable for on-premises sale and consumption of beer and wine, the proposed location is suitable for the sale of beer and wine for off-premises consumption, given the past history of the proposed location as a licensed location for such sales, and the convenience store nature of the present establishment.

(8) 23 S.C. Code Ann. Regs. 7-88 (1976), which authorizes 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 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).

(10) Petitioner meets the statutory requirements to hold a beer and wine permit.



ORDER

IT IS THEREFORE ORDERED that Petitioner's on-premises beer and wine permit application is denied.

IT IS FURTHER ORDERED that Petitioner is granted leave to amend his application from one for an on-premises beer and wine permit to one for an off-premises beer and wine permit; and if so amended, it is ordered that DOR issue an off-premises beer and wine permit to

Petitioner for the proposed location.

______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

November 30, 1995

Columbia, South Carolina


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