South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Eckerd Corporation, Eckerd Drugs, #2499 vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Eckerd Corporation, Eckerd Drugs, #2499
2131 Woodruff Blvd.,
Greenville, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0390-CC

APPEARANCES:
For the Petitioner: Michael T. Lops, Esquire

For the Respondent: Jeffrey M. Nelson, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This matter comes before the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. §§ 61-2-260, 1-23-310, and 1-23-600 (Supp. 2001) for a contested case hearing. Eckerd Corporation, Eckerd Drugs #2499, 2131 Woodruff Blvd., Greenville, SC, seeks an off-premise beer and wine permit for its location at 2131 Woodruff Blvd. in Greenville, South Carolina.

R. H. Patterson, Sr. ("Protestant"), filed a protest to the application with the South Carolina Department of Revenue ("Department") on June 28, 2002, citing "Increase in possible addiction and crime, lack of law enforcement in area, and sale of products not proven safe or free from side effects." Because of the protest, the hearing was required.

The hearing was held on January 8, 2003, at the offices of the Division at 1205 Pendeleton Street, Columbia, South Carolina. The Petitioner, Department, and the Protestant appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, this tribunal finds that the off-premise beer and wine permit should be granted.





FINDINGS OF FACT

Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and taking into consideration the burden of persuasion by the Petitioner and the Protestant, I make the following findings of fact by a preponderance of the evidence:

    • Notice of the time, date, place, and subject matter of the hearing was given to all

the parties in a timely manner.

    • Eckerd Corporation, Eckerd Drugs #2499, 2131 Woodruff Blvd., Greenville, SC,

is the applicant for an on-premise beer and wine permit. The location is at 2131 Woodruff Blvd., Greenville, S.C.

    • Rick Bourne is the District Manager for Eckerd Corporation. The permit is to be

issued in the name of Rick Bourne.

4. Rick Bourne is over twenty-one years of age. He is a resident and citizen of the state of South Carolina and has been for more than thirty days prior to the filing of the application. Mr. Bourne is of good moral character and has never been convicted of a crime.

  • Notice of this application appeared at least once a week for three consecutive

weeks in The Greenville News, a newspaper of general circulation in the local area where the Petitioner will operate.

6. Notice of the application was also given by displaying a sign for a minimum of fifteen (15) days at the location.

  • The location is a retail business selling a variety of products.
  • There are no churches, schools, or playgrounds within three hundred feet of the

proposed location.

  • No evidence was presented at the hearing of any law enforcement problems

having occurred at or around the location.

  • R. H. Patterson, Sr., filed a protest to the issuance of the off-premise beer and

wine permit.

  • Mr. Patterson appeared at the hearing and testified that he is opposed to

granting any new permits in the Greenville area that sell alcohol. Mr. Patterson testified that he believes alcohol is a harmful and unsafe substance, and that the sale of it is detrimental to the community.



CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:



1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. The sale of beer and wine is a lawful enterprise in South Carolina, as regulated by the State.

3. S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for the issuance of a beer and wine permit, provides:

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, 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 the State 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 and has maintained his principal place of abode in the 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.



(7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, S.C.hools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.



(8) 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. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.



(9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:



(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.





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. Byers v. South Carolina Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Although "proper location" is not statutorily defined, broad diS.C.retion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981).

5. 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 a 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).

6. It is also 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. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities, and conclusions or whether the case is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

7. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school, or playground is a proper ground on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). In this case, the location is not within an improper proximity to churches, schools, or playgrounds.

8. The judge may consider whether there have been any law enforcement problems in the general area. Schudel v. South Carolina Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Absent substantial evidence of any law enforcement problems at this location thus far, the potential for problems is not a basis on which to deny the application in this case.

9. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not 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).

  • I conclude that Petitioner has met all of the statutory requirements for holding an

off-premises beer and wine permit at the location. I further conclude that the location is proper and suitable for granting the permit.



ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that the South Carolina Department of Revenue must issue an off-premise beer and wine permit in the name of Rick Bourne to Eckerd Corporation, Eckerd Drugs #2499, 2131 Woodruff Blvd., Greenville, SC, upon payment of the appropriate fees.

AND IT IS SO ORDERED.



__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

February 3, 2003

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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