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. (Rev. 1986 and Supp. 1995) for a hearing pursuant to the application of William P. Melton d/b/a Petro Plus (applicant or Petitioner) for an off-premise beer and wine permit (AI 105790) at Route 1, Highway 21, Great Falls, Fairfield County, South Carolina (location).

A hearing was held on March 6, 1996, at the Administrative Law Judge Division, Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina. The issue considered was the suitability of the business at the proposed location. Reverend Michael E. Sollers (Minister) testified at the hearing in opposition to the grant of the permit. Various other protestants appeared at the hearing and took the same position as Reverend Sollers in opposing the permit request. 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.

At the hearing, Petitioner requested to amend his application request for an on-premise beer and wine permit to an off-premise beer and wine permit. Without objection, the request was granted.

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 - 11 photographs taken of the exterior and interior of the location by Petitioner on March 6, 1996, numbered A-K.

Exhibit #2 - Copy of the Application for Encroachment Permit applied for by Petitioner with the South Carolina Department of Transportation.

The Respondent/Minister placed into evidence the following

Exhibit #1 - Listing of other convenience store locations in the general vicinity showing distances of each from Interstate 77, their general location, whether they held alcoholic permits/licenses or video poker licenses.

Exhibit #2 - Affidavits of Reverend Larry E. Roberts, Reverend W.L. Faile and Reverend Michael E. Sollers. Each was present at the hearing.

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 on-premise beer and wine permit for a convenience store located at Route 1, Highway 21, Great Falls, Fairfield County, South Carolina.

4. The applicant is thirty-seven years of age.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Herald-Independent, 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 has never had a beer and wine permit or any other alcoholic beverage license/permit issued to him revoked.

9. The applicant is of good moral character.

10. Applicant has been involved both peripherally and in management of a convenience store he and his father own in Winnsboro, South Carolina for almost the last 30 years. That store is called Melton's Market. His father holds an off-premise beer and wine permit for that location and, although SLED and ABC agents have checked it on various occasions with undercover individuals, not once has an ABC violation been made. Further, commendations have been written to his father.

11. Applicant, who has been the manager at Melton's Market for a number of years, is familiar with ABC statutes and regulations governing the sale of alcoholic beverages.

12. The photographs placed into the record by Petitioner reflect both the interior and exterior at the location, having been taken on the date of the hearing.

13. The real property and building comprising the location are owned by the Petitioner and Stephen E. Lipscomb.

14. The building at the location is separated into three individual locations or stores. Petitioner has leased the store located to the far right when observed from the front. It is operational now as a convenience store. Further, Petitioner intends to sell short orders such as hot dogs, hamburgers and chicken and has booths where customers may sit. Gas pumps are presently being installed outside.

15. The store has been operational for several weeks.

16. Petitioner is also leasing the middle store or space within the building at the location. He is establishing a Laundromat there. It will be a separate store and operating unit from the convenience store.

17. No plans have been finalized for a store or business on the left side of the building at the location.

18. At present, Petitioner has five video poker machines operational in the convenience store.

19. Petitioner did not discount the eventual placement of video poker machines in the Laundromat location. However, there most probably will not be room for any machines in that space.

20. The hours of operation are similar at both the convenience store and the Laundromat. The convenience store is to be opened at 6:00 a.m. and close at the latest at 2:00 a.m. the following day. However, Petitioner intends to stop beer and wine sales at 12:00 a.m. if the permit is granted.

21. The video poker machines are unplugged on Sundays.

22. Reverend Sollers lives in the Evangel Temple Assembly of God church parsonage which is across Highway 21 from the location. Prayer meetings, Sunday School classes and other church services are held there from time to time. However, the church has a building nearby where regular services are held.

23. The location is in a general rural-residential area in Fairfield County.

24. The concerns of the Minister and the protestants were: first, that the general locale is presently saturated with convenience stores where beer and wine is sold; second, there will be an increase in traffic problems generated from traffic at the convenience store; and third, a general objection to the sale of beer and wine and the playing of video poker machines.

25. The citizens of Fairfield County, by a three to one vote, voted to allow video poker machines and their play in the county.

26. Applicant is at the store location on a daily basis, intends to offer jobs to residents within the local community and will utilize the services of employees at Milton's Market to ensure all ABC statutes and regulations are complied with.

27. Considering the facts at the hearing, the sale of beer and wine for off-premise consumption at the proposed location will not alter the nature and character of the immediate area surrounding the proposed location.

28. The proposed location is suitable for the sale of beer and wine for off-premise consumption.

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. 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 a 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 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 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. 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. Even so, any churches, schools, parks or playgrounds are far enough removed from the proposed location not to be materially impacted by any business practices at the convenience store location.

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).

6. It is 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 this tribunal 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).

7. 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 applicant 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 was that the applicant was and of good moral character.

3. No evidence was shown that there was any previous history at Melton's Market 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 Fairfield County Sheriff's office.

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

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

9. Applicant will utilize the services of employees at the Melton's Market convenience store who have knowledge of ABC statutes and regulations.

10. No credible evidence was shown that the operations of five video poker machines would create any problems in the community.

11. The location is in a rural area where convenience stores are located.

In reaching the above conclusion, I considered the genuineness of the concerns of the ministers and residents in this community. Based upon the facts presented and the desires expressed by applicant that this location will be primarily a convenience store and that he does not intend for the location to be a video parlor with all the ancillary busing of people and traffic congestion problems, I conclude the permit should be granted. However, if circumstances change at the location property whereby traffic increases, video game playing increases and alcoholic consumption occurs, protestants have an adequate remedy to raise any objections at such time the permit comes up for renewal.

8. Reverend Sollers and the protestants' argument that the general locale of the location is saturated with convenience stores that already offer beer and wine for off-premise consumption is not valid in this instance. The location is in a rural area, not a congested or impacted urban area. Even if it were so, without some credible evidence to show that sales at this location would impact on the health, safety and well-being of the residents thereat, the argument lacks merit. However, I do conclude that an appropriate hour for discontinuing the sale of beer and wine in the evenings should be incorporated into the permit. All beer and wine sales should cease at 11:00 p.m.

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 S.C. Department of Revenue and Taxation must issue the permit after payment of the prescribed fee.

10. 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.

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. 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 William P. Melton, d/b/a Petro Plus for an off-premise beer and wine permit for the premises located at Route 1, Highway 21, Great Falls, Fairfield 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 live music 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.

2. The sale of beer and wine is limited to the hours from 6:00 a.m. to 11:00 p.m. Monday through Saturday.

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

4. No advertisement of beer or wine may be physically located outside the store building or space at the location. However, advertisements and/or signs may be located inside the building, including those which are visible from the outside.

5. Petitioner will ensure that no loitering or drinking of alcoholic beverages occurs in the parking areas and exterior areas 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 applicants.

AND IT IS SO ORDERED.

______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

March 7, 1996