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 (Supp. 2002), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp.
2002) for a contested case hearing. J&L Real Estate Holding, LLC, d/b/a J&L, 219 Spring Street,
Laurens, South Carolina, (“location”) seeks an off-premises beer and wine permit (“permit”).
Chief Robin E. Morse from the Laurens Police Department and Reverend James E. Reppart
from Hillcrest Baptist Church (“Protestants”) each filed a protest to the application with the South
Carolina Department of Revenue (“Department”). Because of the protests, the hearing was required.
The Department filed a Motion to be Excused setting forth that but for the protest, this permit would
have been issued. However, this motion was denied.
A hearing was held in this matter on September 15, 2003, at the offices of the Division at
1205 Pendleton Street, Columbia, South Carolina. Both parties and Protestants appeared at the
hearing. Evidence was then introduced and testimony was given. After carefully weighing all the
evidence, this tribunal finds that the off-premises beer and wine permit for this location should be
denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Petitioner and the
Protestants, I make the following Findings of Fact by a preponderance of evidence:
1.The Division has personal and subject matter jurisdiction.
2. Notice of the time, date, place and subject matter of the hearing was given to all parties
and Protestants.
3.Petitioner, J&L Real Estate Holding, d/b/a J&L applied for an off-premises beer and
wine permit for a convenience store located at 219 Spring Street, Laurens, South Carolina. Sevoy
Christopher Jeter is the sole owner of the Petitioner and of the convenience store. Mr. Jeter resides
in Donalds, South Carolina and is currently employed as a Store Manager at Ryan’s Family
Steakhouse in Laurens, South Carolina.
4. Mr. Jeter is over twenty-one years of age. He has been a resident of the State of
South Carolina for the past thirty years and has maintained his principal place of abode in South
Carolina for the same length of time.
5. Notice of this application was lawfully posted both at the location and in a newspaper
of general circulation.
6. Mr. Jeter is of sufficient moral character and has never had a beer and wine permit or
a minibottle license issued to him.
7. Mr. Jeter testified that his convenience store has been open since August 1, 2003. The
store offers for sale to customers light groceries, including EBT food items, candy and snacks, hot
dogs and sub sandwiches. This location does not and will not sell gasoline.
8. The location’s hours of operation are from 7:00 a.m. to 10:00 p.m. seven days a week.
The location has only four parking spaces. Most of its current customers walk to the location from
neighboring low-income apartment housing, located on Spring Street and Independence Street. The
apartment housing is owned by the City of Laurens and managed by the South Carolina Regional
Housing Authority.
9. Mr. Jeter testified that at any one time there may be 25 to 30 people in the location.
If the permit is issued, Petitioner expects to draw approximately two-hundred and fifty (250)
customers from the neighboring apartment housing daily. Mr. Jeter further testified that most tenants
in the apartment housing currently wishing to purchase beer and wine walk approximately one mile
down the road to another convenience store to purchase such for off-premises consumption.
10.The concerns raised at the hearing by the Protestants were about the suitability of the
location.
11.Protestant Chief Robin E. Morse of the Laurens Police Department objects to the
issuance of a permit for this location on the basis that this is a low-income housing area which has
a history of high drug activity. Also, Chief Morse noted and is concerned about the large number of
children in the housing area. Out of 120 apartments located around the location, there are
approximately 148 children under the age of sixteen.
12. Chief Morse testified that efforts by the Laurens Police Department have greatly
reduced crime in the area, but he noted that he is concerned that the issuance of this permit will have
a detrimental impact on the community and foster additional crime in the area. Chief Morse
introduced reports at the hearing which showed that there have been approximately 158 incidents at
the apartment housing located on Spring and Independence Streets in the past year. In addition,
Chief Morse testified that there have been three murders in the area, all of which have been alcohol
related. Off-duty officers patrol the area everyday.
13. Reverend James E. Reppart of Hillcrest Baptist Church objects to the issuance of the
permit because of the proximity of the location to two churches, and because of his concern over the
possibility of sales to minors, increased open consumption, and increased crime in the area.
14. Hillcrest Baptist Church is located approximately 458 feet from the location. It has
approximately 238 members. Another church, The Trees of Righteousness Church, is located
approximately 250 feet from the location.
15. Reverend Reppart testified that there has been only one incident of crime involving
church property in the past four years. However, he testified that he often sees people consuming
beer and wine while cutting through the church yard.
16. There is a playground directly behind the location where children play frequently.
17. Based upon the reputation of crime in the neighborhood of the location, the proximity
of this location to two churches and a playground, as well as its proximity to low income housing
where many children reside, I find that the proposed location is not suitable for an off-premises beer
and wine permit.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Administrative Law Judge
Division the responsibilities to determine contested matters governing alcoholic beverages, beer and
wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for the issuance
of a beer and wine permit. Furthermore, Section 61-4-520(7) states:
The department may consider, among other factors, as indications of unsuitable
location, the proximity to residences, schools, playgrounds, and churches. This item
does not apply to locations licensed before April 21, 1986.
4.Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E. 2d 118 (1981).
5.As the trier of fact, the Administrative Law Judge is authorized to determine the
fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine
using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566,
316 S.E. 2d 705 (Ct. App. 1984).
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 operations of the
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).
7.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 a Protestant objects to the
issuance of a permit 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).
8. The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d
854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority
to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate
the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157
(1996).
9. Permits and licenses issued by this state for the sale of liquor, beer and wine are not
rights or property, but are rather privileges granted in the exercise of the state's police power. See
Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
10.In this case there appears to be ample evidence in the record that the issuance of an
off-premises beer and wine permit at this location would have an adverse impact on the community.
The area surrounding the location, from which it intends to draw most of its customer base, is a low-income housing area with a history of high drug activity and other crime. Police efforts have greatly
improved crime in the area; however, there is little reason to think that the situation would continue
to improve with the availability of more alcohol. In fact, there have been several serious crimes in
the area which were alcohol related. There are two churches in close proximity to the location.
There is also a large number of children under the age of sixteen who live in the low-income
apartment housing, many of which play at a playground which is in close proximity to the location.
For all of the above reasons, Petitioner’s application for an off-premises beer and wine permit at the
proposed location must be denied.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the off-premises beer and wine permit application for the location known
as “J&L,” which is located at 219 Spring Street, Laurens, South Carolina is DENIED.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
September 23, 2003
Columbia, South Carolina |
