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. 1995) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1995) for a contested case hearing. The Petitioner, Calvin D. Chatham, seeks an off-premise beer and wine permit and a retail liquor license for the Calvin's ABC Store and Variety Convenience Store. A hearing was held on January 4, 1996, Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The Permit requested by the Petitioner is approved with restrictions.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, considering the burden of persuasion by the Parties or Protestants, I make the following Findings of Fact by a preponderance of evidence:

1. The Petitioner originally sought an on-premise beer and wine permit for the proposed location. However, at the hearing he amended his requested permit. The Petitioner now seeks an off-premise beer and wine permit for Calvin's Variety Convenience Store at 2548-B North Main Street, Columbia, South Carolina. The Petitioner also seeks a retail liquor license for Calvin's ABC Store at 2548-A, North Main Street.

2. Notice of the time, date, place and subject matter of the hearing was given to the Applicant, Protestants, and South Carolina Department of Revenue.

3. The qualifications set forth in S. C. Code Ann.§§ 61-3-420 and 61-9-320 (Supp. 1995) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner is of sufficient moral character to receive a beer and wine permit.

5. The Petitioner's business is located in a commercial area of Columbia. The proposed location is not within 300 feet of any church, school or playground. However, the proposed location is in the center of the intersection of three neighborhoods. The location is directly adjacent to the "Cotton Town" neighborhood. Though these neighborhoods are located in the city they are comprised primarily of young families and senior citizens. The residents often walk upon the streets of these neighborhoods in the mornings and evenings.

6. The Petitioner testified he plans to open an upscale grocery store at the location where he seeks the beer and wine permit. Most of the proposed parking area would be visible from inside the store. However, there is a large area behind the store that is not visible from the inside.

7. The previous business at the proposed location, Krispy Kreme Doughnuts, had problems with vagrants exposing themselves and urinating upon the property. One local resident even had instances were vagrants crawled under his home at night to sleep. The police frequently had to respond to calls at the business.

8. The Petitioner's proposed location does not yet structurally comply with S.C. Code Ann. §§ 61-3-1000 and 61-3-1020 (Supp. 1995).

9. The proposed location is suitable for an off-premise beer and wine permit for an upscale grocery store with the restrictions set forth below. The location is not suitable for either a retail liquor license or a beer and wine permit for a "convenience type" store. A license or convenience store permit for this location would create an undue burden upon law enforcement and adversely affect the residential community by attracting vagrants and criminal activity to the area.

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1995) 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. 1995) grants to the Administrative Law Judge Division the powers, duties and responsibilities as hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-9-320 (Supp. 1995) sets forth the requirements for the issuance of an off-premise beer and wine permit.

4. No new licenses may be granted if the place of business is within 300 feet of any church, school, or playground if the business is in a municipality or within 500 feet if the business is outside the municipality. S.C. Code Ann. § 61-3-440 (Supp. 1995).

5. Whether there is adequate and proper police protection for an intended retail liquor store is also a proper consideration. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972).

6. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595, 281 S.E.2d 118, 119 (1981).

7. As the trier of fact, the Administrative Law Judge is authorized to decide 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. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705, (Ct. App. 1984).

8. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335, (1985).

9. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that Protestant objects to the issuance of the permits is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

10. In considering the suitability of a location, it is relevant to consider the previous history of the location and to decide whether the testimony opposing the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).

11. Permits and licenses issued by the state for sale of liquor, beer and wine are not rights or property but are privileges granted in the exercise of the state's police power to be used and enjoyed only while the restrictions and conditions governing them are complied with. The Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 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.

12. I conclude that the applicant meets all the statutory requirements for holding a beer and wine permit at the proposed location. Accordingly, I conclude that the proposed location is a proper one for granting the above permit with the following restrictions in a written stipulation.

The Petitioner stipulated at the hearing that he would abide by the following restrictions if granted an off-premise permit:

1. The Petitioner will employ security officers to police the location from 5:00 p.m. to closing.

2. An eight-foot wooden privacy fence will be constructed between the residences and the proposed location.

3. The Petitioner will insure that the property is sufficiently lighted and that the lights do not reflect or shine upon the local residences.

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

ORDERED that the application of Calvin D. Chatham for a retail liquor license is denied. It is further ordered that the application for an off-premise beer and wine permit be granted upon the Applicant signing a written Agreement with the South Carolina Department of Revenue and Taxation to adhere to the stipulations that are set forth below:

1. The Petitioner or his employees shall maintain proper lighting around his proposed location to discourage criminal activity. The Petitioner shall insure that the lights do not reflect or shine upon the local residences.

2. The Petitioner and his employees shall prohibit loitering and the consumption of beer, wine or liquor by the patron/customers in the parking lot area of the proposed location. The Petitioner shall further make every effort to have his employees check the parking lot area on an hourly basis to ensure that no one is loitering upon his premises.

3. As long as the Petitioner holds a beer and wine permit for this location the stipulated fence shall be maintained in a good condition to accomplish both the limitation of movement between the properties and a good appearance. The stipulated wooden privacy fence shall be at least eight feet in height and shall be constructed between the residences and the proposed location.

4. The Petitioner shall contract with a bonded security company or an off-duty law enforcement officer, as permissible under the law, to have a security guard on duty from 5:00 p.m. to closing to patrol the area immediately surrounding the proposed location.

5. The Petitioner shall not sell beer or wine after 11:00 p.m.

IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit and license and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an off-premise beer and wine permit upon the payment of the required fee and cost by the Applicant.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

February 14, 1996

Columbia, South Carolina