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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Franklin G. Rivers, Saluda Square, Inc, d/b/a Saluda Square vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Franklin G. Rivers, Saluda Square, Inc, d/b/a Saluda Square

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0792-CC

APPEARANCES:
For the Petitioner: T. Aladdin Mozingo, Esquire

For the Respondent/ South Carolina Department of Revenue and Taxation: Arlene D. Hand, Esquire (Excused from appearing at the hearing)
 

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. 1995) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 1995) for a hearing pursuant to the application of Franklin G. Rivers, Saluda Square, Inc., d/b/a Saluda Square, (Applicant) for an off-premise beer and wine permit (AI 105605) at 711 Saluda Drive, Florence, Florence County, South Carolina (location).

A hearing was held on March 26, 1996, at the Florence County Courthouse, Florence, South Carolina. Several protestants 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 a 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.

Also, without objection, Petitioner placed into the record at the hearing Exhibits #1 and #2 which consisted of photographs taken at the location both before and after renovations. The protestants, without objection, placed into the record four exhibits which consisted of location sketches/maps and a copy of the City of Florence zoning definition of a neighborhood business district.

Also accepted into the record as evidence of the protestants in attendance was a two page listing of their names and addresses.



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. Applicant/Franklin G. Rivers filed an application with the Department for an off-premise beer and wine permit for a convenience store located at 711 Saluda Drive, Florence, Florence County, South Carolina.

4. The Department assigned file number AI 105605 to the application.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The News Journal, 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 convenience store opened in December 1995 and does business under the name of Saluda Square. Its hours of operation are from 7:00 a.m. to 9:00 p.m. Monday through Saturday, and from 9:00 a.m. to 9:00 p.m. on Sunday. The customers who frequent Saluda Square live primarily within a three to four block radius of its location. Presently there are three video poker machines at the location.

8. The business is owned by Saluda Square, Inc., a South Carolina corporation. The corporate stock is equally owned by the Applicant and his cousin, Charles Neil Grimsley.

9. Applicant is 38 years of age and Mr. Grimsley is in his early 40's.

10. Mr. Rivers is a life-long resident of Florence and graduated from West Florence High School. He lives with his wife, Robin, a schoolteacher, and his two small children, ages five and seven, at 418 Park Avenue, Florence, South Carolina.

11. Mr. Grimsley, who was born and raised in Florence, South Carolina, is an electrical consultant with the corporation, Crown Cork and Seal, and presently lives outside the Florence area.

12. SLED completed a criminal background investigation of the applicant, his wife, and Mr. Grimsley. No criminal violations were revealed. Further, neither the applicant nor Mr. Grimsley have engaged in any acts or conduct which would imply the absence of good moral character.

13. The applicant, Robin Rivers, and Charles Neil Grimsley are of good moral character.

14. Neither the applicant, Mrs. Rivers nor Mr. Grimsley have been issued a beer and wine permit nor have any of them had a beer and wine permit revoked.

15. Approximately six years ago, applicant purchased the Laundromat location which adjoins this convenience store. He renovated it, and it primarily services elderly citizens who live in its immediate vicinity. Its hours of operation are from 6:00 a.m. to 10:00 p.m. Applicant also owns another Laundromat at 700 South Irby Street, Florence, South Carolina, which opens at 6:00 a.m. and closes at 12:00 p.m. He checks on all three businesses at least six times daily and performs most of any mechanical and support work required.

16. The previous owner at the existing location operated what was termed by several witnesses as a "teen hangout." It was an eyesore in the community and a concern for its citizens and also the Petitioner since he operated the adjoining store. Customers at Petitioner's adjoining Laundromat stopped using its services due to loud noise and the congregation of youths next door. There was a significant amount of loitering, littering, alcoholic beverage consumption and usage of drugs by teenagers.

17. To help alleviate the situation and protect his business investment, Applicant purchased the business at the location and he and his cousin have spent approximately $35,000 renovating it.

18. The Saluda Square and the Laundromat (Rivers Wash & Dry) front on Saluda Drive within the city limits of Florence, South Carolina. Residences adjoin on each side. Across Saluda Drive is a HealthSouth location and an apartment building.

19. The location is zoned as a "Neighborhood Business District."

20. Royal Elementary School, a public school offering classes from kindergarten through the fifth grade, fronts on Saluda Drive. Portions of the school grounds are located within one hundred feet from the rear property line of the location. (See Protestant's Exhibit #5)

21. All Saints School, a private school affiliated with All Saints Episcopal Church, offers classes from preschool through the sixth grade. It fronts on Cherokee Road and is approximately 450 to 550 feet from the location measured along public thoroughfares.

22. Moore Intermediate High School is located approximately one quarter to one half mile from the location on Cheraw Drive.

23. Residents of Cherokee Road and adjoining neighborhoods have formed the Cherokee Road Neighborhood Association. Their purpose is to preserve the value of their homes, protect the neighborhood's aesthetic nature, and provide for a safe area where all its residents and family members can work, play and live. They protest this permit application based upon the following concerns:

1. The previous history at the location under its then owners;

2. The potential attraction of unwanted individuals to their neighborhood if beer and wine is sold at the location;

3. The availability of beer and wine at large supermarkets four to six blocks away which alleviates the need for any such sale at this location to serve individuals in the neighborhood;

4. The potential availability at this location of beer and wine to underaged individuals;

5. The safety concerns of pedestrian traffic at and in front of the location; and

6. The negative influence the sale of beer and wine will have on children who shop at the location.

24. The neighborhood consists of families of all ages who wish to preserve its integrity, keep it safe for the children who play there and the residents who live there. Even though the specific location is zoned neighborhood commercial, it's the desire of the neighbors in the association that any business located there will be harmonious with their goals.

25. The location has a long history of off-premise beer and wine permitting by the Department and its predecessor, the Alcohol Beverage Control Commission, to previous owners.

26. Notwithstanding the credible concerns of an outpouring of residents from the Cherokee Road and Saluda Drive neighborhoods, I find that an off-premise beer and wine permit should be granted with restrictions.



CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976 Code of Laws, as amended.

2. S.C. Code Ann. § 61-9-320 (Supp. 1995) 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 State 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 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.

3. S.C. Code Ann. § 61-3-440 (Supp. 1995) 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.

4. 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. Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

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

6. The determination of suitability of a location for issuance of a permit 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). The proximity of the location to residences, churches, schools and playgrounds can be a proper ground by itself to deny a permit. Moore v. S.C. Alcoholic Beverage Control Comm'n, 208 S.C. 167, 417 S.E.2d 555 (1992). Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). The import of the proposed location upon traffic in the area can be a consideration. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). The character of an entire area as rural versus commercial may be considered. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). The proximity of the location to children may be considered. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). It is relevant whether there are already similar existing businesses in the area. Whether there is adequate and proper police protection for an intended location is also a proper consideration. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). Further, any objections to the permit grant must be based upon adequate factual support and not on opinion and conjecture.

7. In this case, there was specific and credible testimony placed in the record that the location, when permitted under previous ownership, was a detriment to the community, impacted upon the health, safety and welfare of its citizens and was a nuisance. However, to judge whether this application is a proper one based upon experience with previous owners, is unfair to this applicant and improper. The issue must be decided based upon the numerous factors addressed in our decisional law and as required by statute.

A public outcry by a number of residents based upon opinions, conjecture and possible problems is not credible evidence to be considered. Applicant, his wife and applicant's cousin are all honorable and credible individuals and each of the protestants who testified acknowledged such. The sole issue then is whether the granting of this permit at this location (which has been permitted for approximately 30 years) to a local businessman who will provide hands-on management, is warranted and proper. I conclude it is warranted and proper and thus the permit should be granted.

Applicant has two young children, the youngest of whom is Mary Allison, aged 5, who attends Royal Elementary School. He is as much concerned about her safety as other neighborhood parents are about their children. Further, the police chief acknowledges he had "no personal problem" with the grant of the permit; his testimony only addressed previous history at the location. Further, his department and its officers have established an excellent working relationship with the applicant.

In addition, applicant has expended a great sum of money in improvements at the location. His hands-on management style at the location, together with his monetary investment evince a desire to maintain its credibility and operate it so to serve local citizens.

Further, applicant has initiated conversations with local officials to allow the location to be utilized as to make the store a child safety zone where school children can wait in safety for parents or guardians to pick them up after school. Applicant has done an admirable job in cleaning up the location and with the restrictions placed on the permit, it should contribute to and assist the needs of the citizens in the area.

8. 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 residents protest the issuance of the permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

9. S.C. Code Ann. § 61-9-340 (Supp. 1995) 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.

10. S.C. Code 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.

11. 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).

12. The decision whether a location is suitable and proper is largely factual and involves the weighing and balancing of many considerations. Having considered all relevant factors in my deliberation, and given due weight to all the evidence presented, I have concluded that the permit must be granted. Applicant has met his burden of proof in showing that all statutory requirements have been met for the issuance of the permit relative to its location and activity.

ORDER

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

ORDERED that the application of Franklin G. Rivers, Saluda Square, Inc., d/b/a Saluda Square for an off-premise beer and wine permit for the premises located at 711 Saluda Drive, Florence, Florence 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. Applicant will utilize his employees to prevent loitering, public disturbances or consumption of alcoholic beverages in the parking areas at the location.

2. Applicant will utilize his employees to remove all litter and trash on a daily basis from all exterior areas at the location.

3. No outside speakers will be installed or placed by Applicant or his agents on the exterior of the building or outside the building at the location which transmit sound or music.

4. Applicant will not allow any advertising of beer or wine on the exterior of the building or at any exterior areas of the location.

5. Applicant will ensure that the location conforms to all city codes, regulations and ordinances.

6. No video poker machines or video machines will be allowed at the location

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 applicant.

AND IT IS SO ORDERED.



______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

April 16, 1996


Brown Bldg.

 

 

 

 

 

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