SC Administrative Law Court Decisions

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 Clayton P. Boardman, III, an officer of Smile Gas, Inc. for an off-premise beer and wine permit for Smile Gas station and convenience store located at 2744 North Road, Orangeburg, South Carolina. After notice to the parties, a hearing was conducted on February 23, 1996. The Department moved to be excused from participating in the hearing on the basis that it would have issued the permit but for the protest which raised the issue of suitability of the location. The Department had no evidence to present with respect to the suitability of the location. The Department's motion was granted. Based upon the evidence presented, the application is granted.

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. Clayton P. Boardman, III is a resident of South Carolina and a legal resident of the United States.

2. He is thirty-six (36) years old and has no criminal record. He is a person of good moral character.

3. The applicant is the President of Smile Gas, Inc. and is the holder of several other beer and wine permits on behalf of the corporation. None of these permits have been suspended or revoked.

4. The proposed location is a gas station convenience store located on U.S. Highway 178 (North Road) in Orangeburg, South Carolina. It is located in an area of the city that is developing.

5. Across the street from the proposed location is a Wal-Mart store. Next to the Wal-Mart is Orangeburg Preparatory School. Next to the location facing Willington Drive is a dentist's office and a day care center. Across the street from the day care center is the First Southern Methodist Church. There are no playgrounds in the vicinity.

6. The entrance to the day care center is on Willington Drive, 495 feet from the proposed location. The rear of the day care's property adjoins the proposed location. It is surrounded by a fence. Next to the day care on the corner of Willington Drive and North Road is a dentist office. Its entrance is also on Willington Drive and parking is located in front of the office. There are entrances to the church's property on Willington Drive and on North Road. These entrances are located 657 feet and 552 feet respectively from the proposed location. The parking lot is the closest part of the church property to the proposed location. From the church parking lot, view of the proposed location is blocked by the dentist office. Orangeburg Preparatory School is the farthest from the proposed location, 1356 feet from the location to the entrance of the school.

7. The hours of operation of the gas station would be seven days a week, 24 hours a day. A BP service station-convenience store is located approximately one-third of a mile from the proposed location and about 400 feet from the church. It sells beer and wine to go.

8. During the past two years, several businesses have located to this area. The church acknowledges the development of the area but objects to the proposed location because of its proximity to the church, the school and the day care. Neither the school nor the day care has voiced opposition to the proposed location. In addition, the church is concerned about the increase in traffic in the area due to rapid development, the sale of beer and wine and its possible impact on the crime rate.

9. The primary objection to the location, however, concerns its method of publishing notice of the application. Notice of the application was published in the North Trade Journal for three consecutive weeks. The church states that this is not a newspaper which the general community would read.

10. The North Trade Journal was selected from a list of newspapers provided by the Department of Revenue and Taxation. The company selected this paper based upon its competitive price for advertisements.

11. Notice of the application was posted at the location for fifteen days.

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. 1994).

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. 1994).

3. S.C. Code Ann. § 61-9-320 (Supp. 1994) 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. S.C. Code Ann. § 61-9-320(6) (Supp. 1994).

4. 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 operations 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).

5. 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. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. The day care center is potentially the business most likely to be affected by the sale of beer and wine because it abuts the parking lot of the proposed location. However, it is entirely surrounded by a fence. A gas station convenience store in which patrons stop to purchase beer and wine for consumption off the premises and are only present on the premises for a short period of time poses less of a safety risk to the day care than a business in which beer and wine are consumed on the premises. Any adverse impact upon the center is minimal.

7. 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 have an adverse impact on the community. The proposed location and the nature of the business activity are suitable and proper given the commercial development of the area.

8. The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

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 residents protest 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. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

10. S.C. Code Ann. § 61-9-320(7) (Supp. 1995) provides that notice of the application must be published in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the business is located. "The department shall determine which newspapers meet the requirements of this section based on available circulation figures." The department provided a list of newspapers meeting the requirements of the statute to the applicant who selected one. Thus, the notice was proper under the requirements of the statute.

11. The applicant and the location are suitable for the issuance of an off-premise beer and wine permit.

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 Clayton P. Boardman, III and Smile Gas, Inc., for Smile Gas #94 located at 2744 North Road in Orangeburg, 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.