ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (ALJD or Division)
pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2002) for a contested case hearing. The Petitioner seeks an off-premises beer and
wine permit for this location at 1609 Beltline Boulevard, Columbia, South Carolina. Prior to the
hearing into this matter, the Department of Revenue filed a Motion To Be Excused which set
forth that but for the Protestants’ protest, the Department would have granted the Petitioner this
permit for the sale of beer and wine off-premises. That Motion was granted by my Order dated
August 21, 2003. A hearing was held before me on October 1, 2003, at the offices of the
Division in Columbia, South Carolina.
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 the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Protestants, and the Respondent.
2.The Petitioner seeks an off-premises beer and wine permit for the Corner Pantry
situated at 1609 Beltline Boulevard in Richland County, South Carolina. The Corner Pantry is
located on the corner of Beltline Boulevard and Trenholm Road, a busy and popular intersection
in Columbia, South Carolina. All outlets of this intersection contain four lanes. Although the
Corner Pantry is in an area zoned “C-3,” this area is substantially upscale residential on all sides of
the location. However, a cat clinic and a dry cleaner are located directly adjacent to this
convenience store within the “C-3” zone.
The Petitioner stated in his application that the hours of operation at this location will be
six or seven days a week from 6:00 a.m. until Midnight. Furthermore, the location has previously
been permitted for the sale of beer and wine off-premises from 2000 until 2003 and has been
operated as a neighborhood convenience store offering bread, milk and other similar items for the
past thirty (30) years. Gasoline is also currently sold at the location.
3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2002)
concerning the residency and age of the Petitioner are properly established. Furthermore, the
Petitioner has not had a permit or license revoked within the past two years.
Notice of the
application was lawfully posted both at the location and in a newspaper of general circulation.
4.The Petitioner has no criminal record and is of sufficient moral character to receive
a beer and wine permit. Additionally, there was no evidence offered to establish that the
Petitioner’s business does not have a reputation for peace and good order.
5.There are no churches or schools in close proximity to this location. However,
Mays Park, a city-sponsored recreational park, is located approximately three hundred (300') feet
from the Corner Pantry across Trenholm Road. Mays Park has basketball courts, tennis courts,
playground apparatus, covered picnic areas, and a recreational building that also serves as a
voting precinct for the area.
6.The Protestants contend that the sale of beer or wine at the Corner Pantry will
possibly attract vagrants or underage individuals to Mays Park who may consume beer and wine
in the park. The Protestants base this concern, in part, on the decline of other city-sponsored
parks they feel are no longer safe for their children or the community in general. One Protestant
further described how he has discovered alcohol packaging on the ground in the park. Even so,
this trash could not be definitively tied to the location as previously or currently operated.
Moreover, Mays Park is located in the city limits and is separated from the Corner Pantry by a
four-lane road. Furthermore, the Trenholm Road side of the park is buffered by a fence that runs
approximately fifty (50') feet. I find that though the Protestants’ concerns are laudable, the
evidence was speculative and based on suppositions at this point in time.
The Protestants are also worried that this location may ultimately affect the value of their
properties. They contend that the negative effects of a convenience store that sells alcohol will
not be realized until sometime down the road. However, again, this theory is speculative.
In
fact, the Protestants testified that the Petitioner has made many aesthetic improvements to this
store that has been vacant for some time. The Petitioner has renovated the location adding new
awnings, landscaping and signage. Thus, the opposite position could be deduced that these
improvements may possibly improve the property values as a run-down abandoned piece of
commercial property is no longer situated in the neighborhood. Furthermore, the location has a
limited number of parking spaces. This fact encourages a quick turn-over of patrons and does not
promote loitering.
Another concern of the Protestants is traffic safety. This location is situated at a busy
four-lane intersection of Trenholm Road and Beltline Boulevard and has had a large volume of
traffic for some time. However, the Protestants did not establish that the off-premises sale of beer
or wine at the location would exacerbate the traffic safety in the area. Therefore, I find that traffic
safety, although a valid concern, does not rise to the level of denying this permit.
7.The two Protestants who live in the vicinity of the Corner Pantry appear to be
sincerely concerned for their community. On the other hand, other local residents expressed
support for the Corner Pantry receiving an off-premises beer and wine permit. Moreover, the
evidence did not sufficiently establish that the proposed location will be a source of any law
enforcement or safety problems in the area. Nor is there sufficient evidence to find that the well-being of the surrounding vicinity would be jeopardized by the issuance of this 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 (1986 & Supp. 2002) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures
Act. S.C. Code Ann. § 61-2-260 (Supp. 2002) further grants the Administrative Law Judge
Division the responsibilities to determine contested matters governing alcoholic beverages, beer
and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for the
issuance of an off-premises beer and wine permit.
3.As the trier of fact, the Administrative Law Judge is authorized to determine the
fitness or suitability of the Petitioner and the proposed business location for a license or permit
using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C.
566, 316 S.E. 2d 705 (Ct. App. 1984). 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).
Without sufficient evidence of an adverse impact on the community, the application must
not be denied if the statutory criteria are satisfied. Furthermore, when this location was originally
permitted for the sale of beer and wine off-premises, the local residents did not protest the
proximity of this location to Mays Park. The Protestants also did not make an adequate showing
that this location is any less suitable for the sale of beer and wine off-premises than it was as
previously permitted. See Taylor v. Lewis, 198 S.E.2d 801 (1973). 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).
4.I find that the Petitioner meets the statutory requirements for holding a beer and
wine permit at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an off-premises beer and wine permit be granted upon
the Petitioner paying the required costs to the Department of Revenue.
AND IT IS SO ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
October 9, 2003
Columbia, South Carolina |
