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 Gregory D. Davis, d/b/a GT's Express Mart #2, (applicant or Petitioner) for an off-premise beer and wine permit (AI 104686) at 3799 White Horse Road, Greenville, Greenville County, South Carolina (location).

A hearing was held on November 29, 1995, at the Spartanburg County Courthouse, Spartanburg, South Carolina. The issue considered was the suitability of the business at the proposed location. Several protestants testified against issuance of the permit. The South Carolina Department of Revenue and Taxation (Respondent or 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 application by the Petitioner is granted with restrictions.

EXHIBITS

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. Also, Petitioner placed the following into evidence:

Exhibit #1 - Tax Map Sheet 170-16 showing the location and its relationship to residences, schools, churches, businesses in the general locale.

Exhibit #2 - Report from the Department showing a previously issued license at the location.

Exhibit #3 - Petitions signed by various individuals.

Exhibit #4 - Six letters from customers of Petitioners GT's Express Mart #1 convenience store and character witnesses.

Exhibit #5 - Eleven photographs taken at the location and of Petitioners store called GT's Express Mart # 1.

Exhibit #6 - Copy of Petitioner's "Employee Liquor Liability Employment Agreement".

Exhibit #7 - Listing of various proposed costs and expenditures to be incurred by Petitioner at the new location.

The protestants placed into evidence a copy of Greenville County Tax Map Sheet 242.1 showing the general locale. The letters and petitions (Exhibits 3 and 4 above) were admitted over objection, and limited weight and validity are given to them.

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 protestants.

3. The applicant is seeking an off-premise beer and wine permit for a convenience store located at 3799 White Horse Road, Greenville County, South Carolina.

4. The applicant is twenty-five years of age.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Greenville News, 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 presently holds an off-premise permit for the sale of beer and wine at another convenience store location owned by him in Greenville County, South Carolina. Further, he has no criminal record or history.

9. The applicant has never had a beer and wine permit or any other alcoholic beverage license/permit issued to him revoked.

10. The proposed location was formerly a Fast Fare convenience store and had been permitted for off premises sale of beer and wine for a number of years prior to its closure. It is not presently operational. Applicant purchased the property in September 1995 for $140,000. He projects a total investment of $400,000 after upgrading and improving the location similar to his other convenience store if this permit application is granted.

11. The location is located on the White Horse Road an the west side of the City of Greenville. It is in a mixed residential and commercial area. The Tabernacle Baptist Church is several blocks (approximately 1500 feet) north of the location and the closest school (elementary) is approximately 500 feet south and across White Horse Road from the location.

12. Approximately six lots north of the location is a convenience store which is presently permitted and sells beer and wine for off-premise consumption.

13. The hours of operation at the location will be twenty four hours a day, seven days a week.

14. Applicant has an ABC training program in place at his existing store called GT's Express Mart #1 for his employees. His manager will oversee the proposed location and will utilize the same training if the permit is approved and granted.

15. Protestants consisted of the Tabernacle Baptist church, several neighbors whose residences adjoin or are located to the rear of the location and a real estate broker whose office is located several lots to the south of the location. Their concerns were primarily based upon problems they had encountered when the Fast Fare operated at the location. They consisted of increased traffic, loitering, public urination behind the location, increased alcohol consumption and consumption behind the location, loud noise at night with usage of profanity, trespassing by customers on their properties and an increased danger to residents in the area. Several of the protestants do not live in the area of the proposed location.

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. Applicant has no prior history of any criminal violations of any kind.

2. Testimony presented at the hearing, particularly that of Deputy Sheriff Everett Hazel, was that the applicant was trustworthy, and of good moral character.

3. No credible evidence was shown that there was any previous history at the location of any ABC violations.

4. Applicant is willing to have the permit restricted to minimize the expressed concerns of various protestants.

5. No credible evidence was shown that the opening of the convenience store with the ability to sell beer and wine for off-premise consumption would increase the danger from traffic in the area, or threaten the safety of residents, including children.

6. The area is policed and patrolled by officers from the Greenville County Sheriff's office.

7. Applicant presently owns and operates a convenience store with an off-premise beer and wine permit with no history of complaints at that location.

8. Applicant has an ABC training program at his present convenience store which would be utilized at this location.

9. Applicant will be a hands on proprietor, participating in its management on a daily basis.

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, 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 Gregory D. Davis, d/b/a GT's Express Mart #2 for an off-premise beer and wine permit for the premises located at 3799 White Horse Road, Greenville, Greenville 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 and/or his employees and agents will prevent loitering and the consumption of beer and/or wine by anyone in the parking lot and exterior areas of the proposed location. No vehicles will be allowed to remain parked in the parking areas at the location except when its occupant/owner/driver is conducting business at the location.

3. Applicant and/or his employees and agents will provide a rest room inside the location for its customers and will put up signs and patrol the outside areas, if necessary, to ensure its customers do not urinate outside.

4. There will be no live music, bands or entertainment at the location nor any exterior/outside speakers allowed except when necessary to conduct business, such as speakers at the gas pumps. Applicant and/or his employees and agents will make every effort to ensure noise is kept to a minimum at the location to avoid any nuisance to area residents.

5. The sale of beer and wine is limited to the hours from 8:00 a.m. to 12:00 a.m. Monday through Saturday.

6. The location will conform to all county codes and ordinances.

7. Applicant will construct and maintain a solid wooden fence at least ten feet in height from the ground along all boundaries with residences, which fence shall be sufficient to prevent any view onto the residents' properties by applicant's customers, employees or agents.

8. Any exterior lights installed by applicant will be so positioned that neither light nor glare therefrom will beam on adjoining residential properties to the extent that it would infringe upon the residents' use and enjoyment of their properties.

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 8, 1995