South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Frankie O. Keel, Anderson Oil Co., d/b/a Rainbow Gas Garden #7 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Frankie O. Keel, Anderson Oil Co., d/b/a Rainbow Gas Garden #7

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0784-CC

APPEARANCES:
Frankie O. Keel, Pro Se for Petitioners

Arlene D. Hand, Esquire for Respondent
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1995) upon the application of Frankie O. Keel and Anderson Oil Co. for an off-premise beer and wine permit for Rainbow Gas Garden #7 to be located at 101 South Railroad West, in Brunson, South Carolina. After notice to the parties, a hearing was conducted on February 23, 1996. Based upon the evidence presented, the application is granted.

FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. The applicant, Frankie O. Keel, is a 58 year old, life long resident of the state of South Carolina and is a legal resident of the United States.

2. He does not have a criminal record and is a person of good moral character.

3. Keel is the Vice President and a partner in Anderson Oil Co. which owns and operates five gas stations in South Carolina and leases at least ten other stations to persons who operate the business.

4. Keel holds at least one beer and wine permit which has never been suspended or revoked.

5. The proposed location is a gas station convenience store to be located at the corner of Highway 278 and Mankor Street in Brunson. The location has not yet been built, but Keel submitted photographs of other similar stations to depict the proposed appearance of the building and gas pumps. The proposed business will be a BP gas station. When built, the location will be open seven days a week from 6:00 a.m. to 11:00 p.m.

6. Anderson Oil Co. provides training to its employees regarding the sale of beer and wine. This training includes viewing a videotape entitled, "ID Fake Out," a written test and review of the company policy. Both the test and the policy are required to be signed by the employee. In addition, the company provides on-going training to remind the employees of the importance of appropriate sales.

7. The proposed location on Highway 278 is a commercial district. One block from the proposed location is a laundry-cleaners business and a Exxon gas station and convenience store. The Exxon sells beer and wine for off-premise consumption and is the only gas station in town. Across Highway 278 are railroad tracks, a small shopping area, the post office, and the town hall.

8. Behind the proposed location on Mankor Street are residences, the closest one being 260 feet from the middle of the property where the business will be built. Across Mankor Street next to the proposed location is a vacant lot used as a garden by the occupants of the house next to it. Behind the garden is a fenced church playground which is 310 feet from the proposed location. Next to the playground is the Brunson Baptist Church, located 420 feet from the proposed location to the front door. Next to the church is the Brunson Elementary School.

9. The Brunson Baptist Church and the Department protested the application on the basis of the location's proximity to the church and school. In addition to the Department's measurements, the church presented different figures based upon measurements conducted by members of the church. The church measured from the closest point of the property of the proposed location to the closest point of the playground; the church property and the school property. According to its measurements, the playground is 71 feet from the proposed location, the church is 158 feet away, and the school is 225 feet away.

10. Brunson Elementary School initially protested the application but withdrew its protest before the date of the hearing.

11. In support of the application, the mayor of the town of Brunson urged the issuance of the permit. Brunson is a small town in which there has been no industry and no economic growth. It is seeking new businesses and industries to expand its tax base and to provide employment for the residents. Highway 278 is a well travelled road and there is a proposal to widen the highway.

12. Notice of the application was posted at the proposed location and published in The People-Sentinel for the time period required.

CONCLUSIONS OF LAW

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

1. The Administrative Law Judge Division has jurisdiction to hear cases under the Administrative Procedures Act. S.C. Code Ann. § 1-23-600 (Supp. 1995).

2. The Division has the powers, duties, and responsibilities of a hearing officer in contested matter governing alcoholic beverages, beer and wine. S.C. Code Ann. § 61-1-55 (Supp. 1995).

3. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the statutory requirements for the issuance of beer and wine permits. Among the criteria is the prohibition against the issuance of a beer and wine permit unless the proposed location is a proper one taking into consideration the proximity to residences, schools, playgrounds and churches.

4. Unlike the requirements for a liquor license, there is no statutorily mandated distance between the proposed location and churches, schools, playgrounds or residences. S.C. Code Ann. § 61-9-320(6) (Supp. 1995) provides that "the Department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches." Because there is no prescribed distance, the issue of which distances should be used need not be reached.

5. The Department seeks denial of the permit based upon William G. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991) in which the state Supreme Court held that "proximity of a location to a church, school or residence is a proper ground, by itself, on which the [Department] may find the location to be unsuitable and deny a permit for the sale of beer or wine.... (Emphasis added) Id. 407 S.E.2d at 655. This case does not require a determination of unsuitability when a proposed location is in proximity to a church, school, playground or residence. Proximity is one of the many factors that may be used to deny the permit.

6. 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); Schudel v. S. C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7. Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

8. In balancing the nature of the business with the concerns of the community, there has been no evidentiary showing that the present location is unsuitable or that the issuance of an off-premise beer and wine permit would affect the residents' safety, create traffic problems, or otherwise have an adverse impact on the community. The proposed location and the nature of the business activity are suitable and proper given the desire for commercial development of the area and the current commercial activity of Highway 278. There is no reason to deny the issuance of the permit solely on the basis of proximity to the church and school.

9. The fact that church protests the issuance of the permit and license 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. The applicant and the location are suitable for the issuance of an off-premise beer and wine permit.

ORDER

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

ORDERED that the Department shall issue an off-premise beer and wine permit to Frankie O. Keel and Anderson Oil Co. for Gas Garden #7 to be located at 101 South Railroad West, in Brunson, South Carolina, upon the payment of the appropriate fees.

AND IT IS SO ORDERED.









___________________________

ALISON RENEE LEE

Administrative Law Judge



March _____, 1996

Columbia, South Carolina.


Brown Bldg.

 

 

 

 

 

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