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. 1994) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev.
1986 and Supp. 1994) for a hearing pursuant to the application of William Hodge,
Community Markets, Inc., d/b/a Community Markets, (applicant) for an off-premise beer and
wine permit (AI 104523) at 3018 Old Georgetown Road, Kershaw County, South Carolina
(location).
A hearing was held on December 13, 1995, at the Kershaw County Courthouse,
Camden, South Carolina. The Kershaw County Sheriff's Office (protestant) was represented
by Captain Stephen Vinson and Lt. Glenn Martin, each of whom initially testified against
the issuance of the permit. The South Carolina Department of Revenue and Taxation
("Department") was not represented at the hearing, having been excused from attending
pursuant to its filed motion. Further, the position of the Department, as outlined in its
prehearing statement, was that based upon information furnished by the investigating State
Law Enforcement Division (SLED) agent it would have issued the permit except for the
protest of interested persons.
The issues considered were: 1) the suitability of the proposed location, and 2) the
nature of the proposed business activity.
Petitioner's application request 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.
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 applicant is seeking an off-premise beer and wine permit for a general
convenience store located at 3018 Old Georgetown Road, Kershaw County, South Carolina.
4. The applicant is fifty-three (53) years of age.
5. Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Kershaw New-ERA, a newspaper of general circulation in the
local area where the applicant proposes 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 applicant has been a legal resident of South Carolina for over thirty days
and has maintained his principal place of abode in South Carolina for over thirty days.
8. The applicant is of good moral character. He has never had a beer and wine
permit revoked or suspended. Further, he has been the manager of the B.C. Moore
Department Store in Camden, South Carolina for the last two and a half (2 1/2) years.
9. The applicant and several other family members are the sole shareholders of
Community Markets, Inc., a corporation licensed to operate and conduct business in the State
of South Carolina. They decided to open a general store on Old Georgetown Road in
Kershaw County, South Carolina, which is in a rural area approximately fifteen (15) miles
from the closest grocery store.
10. The store offers a full line of groceries and beverages (excluding those with
alcoholic content), has a small gift boutique and a restaurant where a full breakfast menu and
short order sandwiches are available. The store opened around the first of September, 1995.
11. The hours of operation of the general store are from 6:00 a.m. to 8:00 p.m.,
Monday through Saturday and from 12:00 p.m. to 6:00 p.m. on Sunday afternoons.
12. The applicant aspires for the store to be recognized in the community and
function as a community and family center. No video poker machines will be allowed or
placed in the store or at the location.
13. There is a church in close proximity to the location. Applicant met with its
pastor (Reverend Smith) and his wife for approximately one hour, listened to the concerns
of the church (on-premise alcoholic consumption and video poker machines) and assured
them that neither would be allowed at the location. Subsequently, after a meeting of its
members, the church determined it would not oppose the granting of this requested permit.
No member or representative of the church appeared at the hearing.
14. The concern of the Sheriff's office of possible on-premise consumption of
alcoholic beverages and the possible placement of video poker machines within the store
were alleviated by the testimony of Petitioner. Both officers agreed in testimony that the
Sheriff's protest was withdrawn.
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 the requested permit to the applicant would have a detrimental impact on the community,
place any undue burdens on local law enforcement, or create traffic problems.
7. There has been no showing that the present location is unsuitable or is not a
fit location.
8. 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 Department must issue the permit after payment of the prescribed fee.
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. 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).
11. I conclude that the applicant has met his burden of proof in showing that he
meets 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 William Hodge, Community Markets, Inc. d/b/a
Community Markets for an off-premise beer and wine permit for the premises located at
3018 Old Georgetown Road, Kershaw 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. Applicant will ensure that no loitering or drinking occurs on the premises.
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
December 14, 1995 |
