ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Joseph H. Moore (Moore), of Manning, South Carolina, filed with the Respondent,
South Carolina Department of Revenue and Taxation (DOR), an application for an off-premises beer
and wine permit. Members of the community filed a protest seeking to prevent DOR from granting
the permit. DOR declined to process the application by relying upon 23 S.C. Code Regs. 7-96
(1976), which provides that an application for a location previously found unsuitable for a permit will
not be processed unless the applicant can show that some material change with respect to the location
has occurred. The Town of Turbeville (Turbeville) and Larry Coker, et. al, as citizens of Town of
Turbeville (Citizens) moved to intervene, which motion was granted without objection.
The hearing in this matter was held on May 10, 1996, with jurisdiction vested in the ALJD under S.C.
Code Ann. §§61-1-55 (Supp. 1995), 1-23-600(B) (Supp. 1995) and 1-23-310 (Supp. 1995). I find
the application was properly denied processing since the application is for the same location as was
previously denied and since no material changes have taken place in respect to the location. Any
issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed
denied. ALJD Rule 29B. Further, the filing of a motion for reconsideration is not a prerequisite to
any party filing a notice of appeal of this Order. ALJD Rule 29C.
II. Issues
1. Does Moore's current application seek a beer and wine permit for a location that was
previously found unsuitable in 1989?
2. If yes, have there been material changes in respect to the location since the prior finding of
unsuitability?
3. Do the principles of res judicata and collateral estoppel prevent Moore from seeking a permit
for the location here under review?
III. Analysis
A. Same Location
1. Positions of Parties:
Moore asserts the 1995 application is for a different location than the one submitted in 1988 and
denied in 1989. Moore states the prior application was denied based upon the use of a building on
the front portion of a specific lot identified as the "old station" property. The new application, he
argues, seeks a permit at a location approximately 100 feet distance from the previous location.
Moore further asserts the new location will contain a new building to be constructed on the back
portion of a specific lot. DOR, Turbeville, and Citizens disagree by asserting the location is the same
as that denied in 1989.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. On December 18, 1988, Moore filed an application with the S.C. Alcoholic Beverage Control
Commission (ABC) for an off-premises beer and wine permit to be located at Hwy. 301 at
378 on Main Street in Turbeville, South Carolina.
2. The application was identified by ABC as AI # 60503.
3. The proposed location was to utilize the permit as a convenience store.
4. The 1988 application was denied and the ABC decision was appealed and ultimately upheld
in Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (S.C. 1992).
5. In October of 1995, Moore filed with DOR a second application for an off-premises beer and
wine permit.
6. The proposed location for the second application is that property located at Hwy. 301 at 378
on Main Street in Turbeville, South Carolina.
7. The map of the location drawn by the ABC investigator on December 22, 1988 does not
show a separation of the property into two parcels.
8. The map of the location drawn by the ABC investigator on December 22, 1988 does not
identify any business operating on the property, but does identify other businesses operating
in the area.
9. In 1989, the rear portion of the property was rented to a used car dealer.
10. In 1989, the front portion of the property contained a building identified as the "old station."
11. In 1993, the "old station" was torn down.
12. Neither the 1988 application nor the map of the location drawn by the ABC investigator for
the 1988 application shows the precise spot upon which the convenience store was to
operate.
13. The Order issued by ABC on June 5, 1989, states "... the Commission concludes that the
premises at the intersection of Highways 301 and 378 in Turbeville are unsuitable for the sale
of beer and wine and that the public interest is best served by denying the Moore application."
14. In ABC's Order of June 5, 1989, the Commissioners did not base their decision on property
that was limited to the "old station, " but rather the order relies upon denying the location "at
the intersection of Highways 301 and 378."
15. The 1988 application itself did not limit the location to the "old station," but instead the
application states the location is the property identified as Hwy. 301 at 378.
16. The ABC investigator's map drawn in 1988 does not make any mention of limiting the size
of the property.
17. The location under review by ABC and denied in 1989 was the entire property owned by
Moore Oil Company at the intersection of Highways 301 and 378.
18. Under the 1995 application, a new building will be built by the applicant but none of the
building will be constructed on the "old station" property.
19. The "old station" property will be used for parking and gas pumps as a part of the new
convenience store business.
20. The "old station" property is almost 60% of the total property for the new application.
21. Moore resubmitted the "old station" property as a part of the application for a "new
location."
3. Discussion
The first issue is whether the 1995 application seeks a permit for the same location as the location
that was denied in 1989. If yes, the restrictions of S.C. Code Regs. 7-96 are applicable. Under the
facts of this case, the 1995 application seeks a permit for the same location as was denied in 1989.
a. Ambiguity
Under the regulation, an application for a location previously found unsuitable for a permit will not
be processed by DOR unless the applicant can show that some material change with respect to the
location has occurred. S.C. Code Regs. 7-96 (Supp. 1995). The word "location" is not defined. One
interpretation of its meaning could be limited to the precise footprint of the building or other specific
point on the property that is to be used for the business. A second meaning could include the entire
property owned by the applicant upon which the business is to operate. Given the various meanings,
the use of the word "location" is ambiguous (ambiguity means doubtful or doubleness of meaning,
Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934); language is
ambiguous when it is capable of being understood by reasonably well-informed persons in either of
two or more senses, Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d
355 (1969), State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 (1964)). In interpreting
ambiguous language, the primary rule of construction is to ascertain and give effect to the intent or
purpose behind the language. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975). Further,
the intent should be ascertained primarily by adopting the plain usage of the words employed in the
provision being interpreted. 82 C.J.S. Statutes § 322(b) (1953).
b. Intent Satisfied
The intent of S.C. Code Regs. 7-96 is to have only one review of property which an applicant seeks
to use for a permitted premises and to put an end to litigation when the applicant has had a fair
opportunity to establish the property is a proper location for a permit. To limit the meaning of the
word "location" to the footprint of the building or other specified point on the property under review
would not further the intent of the regulation. First, such a view would encourage relitigation. After
a denial, the applicant could move his "location" to a different point on the property and simply
reapply as a new location. Such a danger is especially likely since the evidence shows that an
applicant is not required to specify where on the property the building will physically be placed.
Second, the view gives too little credence to the premise that the issue of proper location is not
simply a matter of geography. See Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). To
focus rigidly upon the physical layout or placement of the building upon the property in deciding the
meaning of "location" is in direct opposition to the requirement that the determination of the
suitability of a location is based upon numerous factors and considerations which may be unrelated
to geographic details.
On the other hand, viewing the location as including the entire property owned and submitted by the
applicant furthers the intent of the regulation. The applicant has a full opportunity to explain why the
property under review is a proper location without either the applicant, the public, DOR, or any
adjudicatory body being presented with essentially a reexamination of previously denied property.
c. Application of Regulation
1. Denial Of Prior Location Based Upon Entire Intersection Property
In the instant case, the property under review in 1989, and correspondingly, the location under review
was the entire property owned by Moore Oil Company at the intersection of Highways 301 and 378.
Moore asserts the "old station" property was all the ABC considered. The Commissioners in the
ABC denial order of 1989 did not base their decision on property that was limited to the "old
station." Rather, the order examines the location "at the intersection of Highways 301 and 378."
Further, the 1988 application did not limit the location to the "old station," but instead, the
application itself simply states the location is the property identified as Hwy. 301 at 378. Had Moore
sought to limit the property under consideration he could have so designated on the application. In
addition, the ABC investigator's map drawn in 1988 does not make any mention of limiting the size
of the property. In this case, the property submitted for consideration of a permit in 1988 and denied
in 1989 is the entire property owned by Moore Oil Company at the intersection of Highways 301 and
378.
2. "Old Station" Property Resubmitted
While the above establishes that the scope of the location denied in 1989 includes the entire property,
even if the property under review in 1989 could be limited to the "old station," the "old station"
property is again being presented for reconsideration as a part of the new location for the 1995
application. Mr. Moore testified that the new building would not be built upon the "old station"
property. However, Mr. Moore did not comment upon the use to be made of the "old station"
property. SLED Agent Scott, however, in his investigative report which is part of the evidence
before me, explains that as of November 27, 1995, Mr. Moore stated that the "old station" property
would be used for parking and gas pumps as a part of the new convenience store business. A parking
lot is part of the permitted premises under a beer and wine permit. S.C. Code Regs. 7-81 (Supp.
1995). Accordingly, the parking lot is part of the location for purposes of S.C. Code Regs. 7-96.
Thus, the "old station" property, which admittedly was denied a permit in 1989, is in fact being
resubmitted for a permit as a part of the application for a "new location." In the instant case, based
upon the plat in evidence, the "old station" property represents almost 60% of the total property.
While the results in other cases will depend upon the facts of those cases, here, for purposes of S.C.
Code Regs. 7-96 (Supp. 1995), since the prior denied location constitutes a majority of the property
being submitted for a new application and since the denied location will be used for the benefit of the
convenience store identified in the new application (e.g. by means of a parking lot and a place to
dispense gasoline), the denial of the prior location prevents the processing of the new application
unless the applicant can show a material change in conditions from the prior denial.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. DOR shall not process an off-premises beer and wine permit where an application has been
denied by the S. C. Alcoholic Beverage Control Commission unless some material change
with respect to the location has occurred. 23 S.C. Code Regs. 7-96 (1976).
2. The word "location" in the regulation is not defined. 23 S.C. Code Regs. 7-96 (1976).
3. The word "location" is ambiguous since it has doubtful or doubleness of meaning and it is
capable of being understood by reasonably well-informed persons in either of two or more
senses. Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934);
Southeastern Fire Ins. Co. v. S.C. Tax Comm'n, 253 SC 407, 171 S.E.2d 355 (1969); State
ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 (1964).
4. Ambiguous language should be interpreted so as to ascertain and give effect to the intent or
purpose behind the language. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975).
5. The intent of language used should be ascertained primarily by adopting the plain usage of the
words employed in the provision being interpreted. 82 C.J.S. Statutes § 322(b) (1953).
6. The intent of S.C. Code Regs. 7-96 is to end litigation by limiting to one the number of
administrative reviews when the same property has been previously denied as to location.
7. To limit the meaning of the word "location" to the footprint of the building or other specified
point on the property under review does not further the intent of the regulation but rather
encourages relitigation since the applicant could move his "location" to a different point on
the property and simply reapply as a new location.
8. To limit the meaning of the word "location" to the footprint of the building or other specified
point on the property under review does not further the intent of the regulation but rather
encourages relitigation since the view gives too little credence to the premise that the issue
of proper location is not simply a matter of geography. Kearney v. Allen, 287 S.C. 324, 338
S.E.2d 335 (1985).
9. Viewing the location as including the entire property owned and submitted by the applicant
furthers the intent of the regulation since the applicant has had one full opportunity to explain
why the property under review is a proper location and prevents the applicant, the public,
DOR, or any adjudicatory body from being presented with essentially a reexamination of
previously denied property.
10. A parking lot is part of the permitted premises under a beer and wine permit. S.C. Code Regs.
7-81 (Supp. 1995).
11. The use of the "old station" property for a parking lot and gas pumps for the new application
makes the "old station" part of the location to be considered for purposes of S.C. Code Regs.
7-96.
12. Since the prior denied location, which under the applicant's view consists only of the "old
station" property, constitutes a majority of the property being submitted for a new application
and since the denied location will be used for the benefit of the convenience store identified
in the new application (i.e. by means of a parking lot and a place to dispense gasoline), the
denial of the prior location prevents the processing of the new application unless the applicant
can show a material change in conditions from the prior denial. S.C. Code Regs. 7-96 (Supp.
1995).
B. Change in Conditions
1. Positions of Parties:
Moore asserts the application should be granted since there have been changes in the conditions since
the prior denial in 1989. DOR, Turbeville, and Citizens assert the same factors that existed in 1989
have continued, and in fact, have increased in terms of a negative impact upon the community from
the granting of a beer and wine permit.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. On June 5, 1989, the former S. C. Alcoholic Beverage Control Commission (ABC) denied
an off-premises beer and wine permit to a location at Highway 301 at 378 Main Street,
Turbeville, South Carolina.
2. The 1989 order denied the permit based upon the proposed location's proximity to Southern
Methodist Church and to East Clarendon High School.
3. The 1989 order also denied the permit based upon the strain on police protection resulting
from the proposed location since the Town of Turbeville had only one part-time policeman.
4. At the 1989 ABC hearing, a map covering the immediate area was before the ABC.
5. In the 1995 application, DOR had before it a map covering the immediate area.
6. There are no material changes in the physical layout of the area from the way such existed in
1989 until the time of the second application in 1995.
7. The proposed location in the 1995 application is essentially the same distance from Southern
Methodist Church and from East Clarendon High School as was the proposed location in
1988.
8. At the time of the 1995 application, the Town of Turbeville still has only one part-time
policeman, whose duties will create a strain on police protection if the proposed location were
permitted.
9. The location under review in the 1988 application is the same location that is under review
in the 1995 application.
10. A new church, New Jerusalem Church, is closer to the proposed location than is the Southern
Methodist Church.
11. There are no material changes with respect to the location sufficient to warrant DOR
processing the application of Moore.
3. Discussion
In denying the permit, the ABC Commission determined in 1989 that the location was improper.
Under S.C. Code Regs. 7-96 (Supp. 1995), DOR is not required to process the application until the
applicant demonstrates material changes have occurred at the previously denied location. The 1989
denial relied upon three factors: proximity to a church, proximity to a school, and the inadequacy of
police protection. These factors must be examined to determine if any changes have occurred and,
if not, have any other relevant factors changed to such a degree as to warrant a reexamination of the
location issue.
a. Prior Considerations
The prior three considerations of proximity to a church, proximity to a school, and the inadequacy
of police protection have not changed. The evidence is clear that the proposed location will have a
distance that is not a material change from that distance which was unacceptable in 1989. Further,
the Town of Turbeville still has only one part-time policeman and the same strain on law enforcement
that existed in 1989 still exists in 1996. Accordingly, there are no material changes to the factors
relied upon in the prior denial.
b. Other Considerations
The applicant may seek to have the application processed by DOR where the applicant can show
"some material change with respect to the location," even if the change is to factors not relied upon
in the prior hearing. S.C. Code Regs. 7-96 (Supp. 1995). For example, if an applicant could show
the area has changed from decidedly rural to highly commercial or there has been the addition of
other beer and wine permits in the community, such factors may be sufficient to warrant reexamining
the location even though the lack of commercial development and the lack of other beer and wine
permits were not identified reasons for the prior denial. It is true that the proximity of the location
to churches can be a proper ground by itself to deny the permit. William Byers v. S.C. ABC
Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). The need, however, to consider other factors is
premised on the fact that the hearing body in the permitting process should consider any and all
factors which demonstrate the impact a location will have on the community. See Palmer v. S.C.
ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Only by weighing competing factors
can a decision be reached. While a previous denial may have weighed specified factors against the
applicant, "a material change" in other factors may require a reweighing of all factors at a subsequent
date. The linchpin of the analysis is the duty of the applicant to prove the material changes.
In the instant case, there is no persuasive evidence of material changes in other factors sufficient to
warrant a reexamination of the location issue. In fact, the evidence demonstrates that in 1996 a
second church, New Jerusalem Church, is now located even closer to the proposed location than was
the distance to the church relied upon in the 1989 denial. Further, there is no persuasive evidence of
other factors that demonstrate a change sufficient to constitute a material change in the location since
1989. Accordingly, DOR is not required to process the application of Moore.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. DOR shall not process an off-premises beer and wine permit where an application has been
denied by the S.C. Alcoholic Beverage Control Commission unless some material change with
respect to the location has occurred. 23 S.C. Code Regs. 7-96 (1976).
2. A material change with respect to a location is any change of a meaningful nature to any
factor that is relevant to the decision of whether the location for a beer and wine permit is a
proper location. S.C. Code Ann. §61-9-320(6) (Supp. 1995).
3. The proximity of the location to churches can be a proper ground by itself to deny the permit.
William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
4. The hearing body in the permit process should consider any and all factors which demonstrate
the impact a location will have on the community. See Palmer v. S.C. ABC Comm'n, 282
S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
5. There are no material changes with respect to the proposed location.
C. Res Judicata and Collateral Estoppel
1. Positions of Parties:
DOR asserts Moore is barred by the doctrine of res judicata. Town of Turbeville and Citizens assert
Moore is barred by the doctrine of collateral estoppel. Both groups base their claims upon the
position that the issue of the location has been previously litigated and may not now be relitigated.
Moore asserts the principles of res judicata and collateral estoppel are not applicable to the
application processing stage of this dispute.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. On December 18, 1988, Moore filed an application with the ABC for an off-premises beer
and wine permit to be located at Hwy. 301 at 378 on Main Street in Turbeville, South
Carolina.
2. The 1988 application was denied in 1989 by ABC on the grounds the location was not a
proper location.
3. The denial of the permit by ABC was appealed by Moore and the decision to deny the permit
was upheld in Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (S.C. 1992).
4. The Town of Turbeville and the Citizens were not parties or in privity with ABC in the case
of Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (S.C. 1992).
5. In October of 1995, Moore filed with DOR, the successor to ABC, a second application for
an off-premises beer and wine permit for the same location that was previously denied by
ABC in 1989.
6. DOR refused to process the 1995 application since Moore had not demonstrated any material
changes with respect to the location.
3. Discussion:
DOR's assertion of res judicata and the Town of Turbeville's and the Citizens' assertion of collateral
estoppel are not proper at this stage of the disputed application. Res judicata holds that a final
judgment on the merits in a prior action between the identical parties will preclude those parties and
their privies from re-litigating any issues actually litigated or those that might have been litigated in
the first action. Griggs v. Griggs 214 S.C. 177, 51 S.E.2d 622 (1949). Similarly, collateral estoppel
requires a showing that the issue sought to be precluded was an issue actually litigated and directly
determined in the prior action, and that the matter or fact directly in issue was necessary to support
the first judgment. Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186 (Ct. App. 1984). Thus, neither res
judicata nor collateral estoppel is applicable where the decision on an issue or fact in the prior action
was limited to an issue or fact not involved in the second action. Town of Sullivan's Island v.
Felger, ___ S.C. ___, 457 S.E.2d 626 (Ct. App. 1995) (res judicata and collateral estoppel not
applicable since prior litigation only involved northern boundary of property while the subsequent
litigation concerned a dispute over the southern boundary.).
Here, the issue in the instant case is not a matter that was or could have been included in the first
litigation. The issue previously decided was whether the location was a proper location for a permit.
The single and narrow issue now under review is whether the application should be processed based
on showing that changes have occurred at the location. The two issues are distinct and separate. The
second issue of changed circumstance requires an investigation of facts and events which can only
exist after the first denial. Thus, the facts and issues of the second action could not have been decided
or addressed at the time of the first litigation. Accordingly, neither res judicata nor collateral
estoppel apply to the instant matter.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1.. Res judicata holds that a final judgment on the merits in a prior action between the identical
parties will preclude those parties and their privies from re-litigating any issues actually
litigated or those that might have been litigated in the first action. Griggs v. Griggs 214 S.C.
177, 51 S.E.2d 622 (1949).
2. Collateral estoppel requires a showing that the issue sought to be precluded in a subsequent
action was an issue actually litigated and directly determined in the prior action, and that the
matter or fact directly in issue was necessary to support the first judgement. Beall v. Doe,
281 S.C. 363, 315 S.E.2d 186 (Ct. App. 1984).
3. Neither res judicata nor collateral estoppel is applicable where the decision on an issue or fact
in the prior action was limited to an issue or fact not involved in the second action. Town of
Sullivan's Island v. Felger, ___ S.C. ___, 457 S.E.2d 626 (Ct. App. 1995).
4. DOR's assertion of res judicata and the Town of Turbeville's and the Citizens' assertion of
collateral estoppel are not proper at this stage of the disputed application.
IV. ORDER
DOR is ordered not to process the application filed by Moore for an off-premises beer and wine
permit at Highway 301 at 378 Main Street, Turbeville, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 22nd day of May, 1996. |
