ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter came before me 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 Thomas A. Gregg, Quinby Package Store, Inc., d/b/a Quinby Wine & Spirits on
Cashua ("applicant") for a retail liquor license (AI 106991) at 327 S. Cashua Street, Florence,
Florence County, South Carolina ("location").
A hearing was held on May 8, 1996, at the Administrative Law Judge Division offices, 1205
Pendleton Street, Columbia, South Carolina pursuant to protest letters filed by Wade A. Hamilton;
Virginia A. Peacock; Vicky R. Zelenka, as President of The Country Club Forest Neighborhood
Association; Mr. and Mrs. C. E. Goff; Sara Lee Simons; and J. E. Potterfield ("Protestants"). The
issues considered were: 1) the suitability of the proposed location, 2) the nature of the proposed
business activity and, (3) whether a material change had occurred at the proposed location since a
denial by the former South Carolina Alcohol Beverage Control Commission (Commission) for
requests of an on-premise beer and wine permit and a business sale and consumption (minibottle
license) in 1992. Various Protestants attended the hearing and Mr. Hamilton testified as their
spokesperson. Upon motion filed with the Division, the South Carolina Department of Revenue and
Taxation ("Department") was excused from appearing at the hearing.
Petitioner's application request for a retail liquor license is granted.
EXHIBITS
Those certified copies of documents forwarded to the Administrative Law Judge Division
from the Department's file were made a part of the record. However, little probative value or weight
is given to any "petitions" with signatures seeking the denial of the license.
Various other exhibits were entered into the record at the hearing by Petitioner and a
Protestant. Subsequent to the hearing, the Department was ordered to forward to this Court a copy
of the 1992 decision denying the requests for an on-premise beer and wine permit and a business sale
and consumption license (minibottle license). The Department did forward the 1992 decision by the
Commission to the Division and that decision was made a part of the record in this case.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony of the applicant, and having
judged the credibility of all 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
and the Protestants.
3. The applicant is seeking a retail liquor license for a store located at 327 S. Cashua
Street, Florence, Florence County, South Carolina.
4. The applicant is 46 years of age.
5. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Florence Morning News, a newspaper of general circulation in the local area where the
applicant propose to engage in business.
6. The applicant, within two (2) years before the date of application, has not had a beer
and wine permit revoked nor has he within five (5) years before the date of application, had a liquor
license revoked.
7. The applicant is and has been a legal resident of the United States and South Carolina
for at least thirty (30) days before the date of application and has maintained his principal place of
abode in South Carolina for at least thirty (30) days before the date of application.
8. The applicant, as an individual and as a principal of the corporation, Quinby Package
Store, Inc., is of good moral character and repute. The State Law Enforcement Division ("SLED")
completed a criminal background investigation of the applicant. The SLED report revealed no
criminal violations. Further, the applicant has not engaged in any acts or conduct that imply the
absence of good moral character.
9. 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.
10. The location is situated in a largely concentrated residential/commercial area within
the city limits of Florence, South Carolina. The area across Cashua Street at the location is primarily
residential and is zoned " R-12." Located behind those residences is the Florence Country Club
which holds a beer and wine permit and a business sale and consumption (mini-bottle) license.
However, the area on the west side of Cashua Street where the location is situate consists primarily
of business establishments and is zoned as a "General Business" district.
11. The location is behind a strip shopping center. A Harris Teeter grocery store located
in this shopping center which has been issued an off-premise beer and wine permit by the Department.
The location is in a masonry building. A small portion of the building on its south is occupied and
operated as a ladies' beauty shop with the remainder (northern portion) used by the applicant as a
retail liquor store. The location has previously been used as a convenience store and more recently
as a golf store.
12. Applicant and his mother are the sole shareholders of Quinby Package Store, Inc.,
They also own another retail liquor store in the Town of Quinby (of which applicant is the mayor).
Applicant, his late father and his mother have owned that store for approximately the last 25 years.
They have never had any violations written at that location, had any problems with its neighbors due
to its operation, and have never needed law enforcement assistance at the location. The license at that
location is in the name of applicant.
13. The hours of operation at the location will be from 9:00 a.m. to 7:00 p.m., Monday
through Saturday.
14. The lessor of the location property is Larry Younginer. His wife operates and owns
the beauty shop located in the building.
15. There is a retail liquor store at the Florence Mall which is several blocks away and
another one approximately one mile in distance from the location.
16. The applicant posted the appropriate bond as required by statute.
17. The concern of the Protestants are several, including: 1) the desire to protect the
safety of people in the neighborhood and for the welfare of the neighborhood, due to its closeness,
and, 2) a lack of any material change at the location since the denial of an on-premise beer and wine
permit and a business sale and consumption license in 1992.
18. Applicant intends to provide a hands-on management style at this location. He intends
to stay at this location approximately 75% of its operating hours in the beginning. Further, he intends
to assign key employees to assist in its management. There will be no pool tables, jukebox, disc
player, poker machines or game machines at the location. No crowds will be allowed to congregate
at the location nor will any noise be tolerated.
19. Traffic at the location can be heavy at times since Cashua Street is a major
thoroughfare within the city limits of Florence.
20. There are no churches, schools, or playgrounds in close proximity to the location.
21. Pursuant to an Interlocutory Order issued by this Court on June 10, 1996, the
Department provided information relative to a hearing before the Commission on January 22, 1992
on a request by Sheldon L. Langston, d/b/a Fat Bellys Pub and Deli, for an on-premise beer and wine
permit and a business sale and consumption (minibottle) license at this same proposed location.
These records reflect that those application requests were denied based upon its location. Although
no formal order was prepared by the Commission after that hearing, a recapitulation of the testimony
at the hearing, as prepared by Commission staff, reflected concerns by witnesses about heavy traffic
at the location, safety and peaceful enjoyment by nearby residents in their homes and while walking
along the streets in their neighborhoods, potential increase in crime, loitering of potential patrons
outside the location, the potential of excessive noise and the protection of property values.
Administrative notice is taken of that decision and it is incorporated herein.
22. The application requests filed in 1991 were protested by both the Florence Police
Department and the Florence County Sheriff's Office. Police Chief Waymon Mumford and Franklin
McCalister, from the Florence County Sheriff's office appeared at and testified at that hearing,
objecting both to the consumption of alcohol at the location and to the applicant. Neither the
Florence Police Department nor the Sheriff's office protested the current application nor appeared
at the hearing. Also, Mr. John Jebailey, a resident who protested the 1991 application requests, did
not protest this application request.
23. The area immediately surrounding the proposed location has not measurably changed
since the hearing in January 1992.
DISCUSSION
In January, 1992 the Commission, in denying the requests for the on-premise beer and wine
permit and the sale and consumption (minibottle) license, determined that the location was improper.
S. C. Code Regs. 7-30 states that the Department, upon the filing of an application request for a
liquor license, must not process it until the applicant affirmatively shows a material change at the
location since the previous denial. There is no question that the location which is involved in this
contested case proceeding is the same as the location which was denied in the 1992 hearing. Thus,
the issue of "material change" must be hurdled by the Petitioner prior to a determination on the merits
of the location and whether it is suitable.
In reviewing the requirements for a license versus a permit, S.C. Code Ann. §61-9-320(6)
requires that the trier of fact, in determining a suitable location for a permit must consider the
proximity to residences in addition to schools, playgrounds and churches. Conversely, S.C. Code
§61-3-440 requires the denial of a license at a location if it is within certain distances of a church,
school or playground. There is no statutory authority mandating the consideration of proximity of
a location to residences in determining whether a license should be issued. Since the Commission
had before it applications for both a permit and a license, it was required to consider proximity to
residences, in addition to churches, schools and playgrounds.
The 1992 decision denying the two application requests was premised upon the testimony that
various factors would potentially have a negative effect on the surrounding community. Those
factors included: 1) heavy traffic on Cashua Drive; 2) numerous accidents at the Five Points
intersection; 3) the potential attraction of a younger element to alcohol; and 4) the possibility of
game machines and pool tables being placed in the location, thus potentially attracting patrons
congregating inside the location and in the parking area, resulting in loud noise and inebriated patrons
leaving the location and creating problems within the nearby neighborhoods. An examination of these
factors must be considered, as well any other relevant factors, which may presently affect the
determination whether sufficient material change(s) have occurred at the location to warrant
processing the application request. See Palmer v. S. C. ABC Comm'n, 282 S. C. 246, 317 S.E.2d
476 (Ct. App. 1984).
The prior consideration of heavy traffic on Cashua Drive has not changed. There was no
testimony nor any statistical data placed in the record relative to the number of accidents at the Five
Points intersection; accordingly, it must be assumed that it remains a busy intersection where
accidents occur. However, the additional impacts on the neighborhood which were considered by
the Commission in 1992 no longer exist. The retail liquor store will not be attracting youths since
there will be no game machines, pool tables or poker machines. Further, since the sole purpose for
stopping at the location will be to purchase a container of alcohol, there will be no loitering, either
inside or outside, nor will any consumption of alcohol occur on the premises which could lead to or
contribute to an act of violence in the adjoining neighborhoods. The nature of the license requested
in this case will have substantially less impact on the neighborhood than did the on-premises permit
and license requested in 1992. Petitioner has affirmatively shown that most of the concerns and
factors which weighed heavily on the mind of the Commissioners in denying the 1991 application do
not apply in this case. I find that there is persuasive evidence of material changes in the factors which
caused the denial of the application requests in 1992 and that this application request is ripe for
consideration on its merits.
After having considered all of the above factors as addressed in this Discussion, all applicable
statutory provisions and the character of the applicant, I conclude that a retail liquor store license
should be issued to the applicant.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division is empowered to hear this case
pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976 Code of
Laws, as amended.
2. S.C. Code Ann. § 61-3-420 (Supp. 1995) provides that no person is eligible for a
license under this Chapter, Chapter 7 and Article 3 of Chapter 13, if he or the person who will have
actual control and management of the business proposed to be operated:
(1) is less than twenty-one years of age:
(2) is not a legal resident of the United States and has not been a resident of South Carolina
for at least thirty days before the date of application and has maintained his principal abode
in South Carolina for at least thirty days before the date;
(3) is not of good repute; or
(4) has had a license under this or another statute regulating the manufacture or sale of
alcoholic liquors which has been revoked within the period of five years next proceeding the
filing of the applications.
Applicant has never had a license issued to him or to the Corporation revoked.
3. S. C. Code Regs. 7-30 states that the Department will not hear or process a liquor
application when the location involved has been previously declared or been found to be improper
unless and until the applicant can affirmatively show that some material change with respect to the
location has occurred, or unless the Department orders otherwise.
4. A material change with respect to a location is a change of a meaningful nature to a
factor that was relevant to the original decision finding the location unsuitable for an on-premise beer
and wine permit and a sale and consumption(minibottle) license.
5. S. C. Code Ann. §61-3-490 provides that every person applying for a license under
Chapter 1, Chapter 7, and Article 3 of Chapter 13 shall advertise at least once a week for three
consecutive weeks in a newspaper of general circulation in the county, city or community in which
the applicant proposes to do business. Further, it requires that a sign must be posted by an agent of
the Department at the proposed location for a period of fifteen days providing notice to any
interested person of the application request.
6. S.C. Code Ann. § 61-3-440 (Supp. 1995) prohibits the issuance of any liquor license
provided for in Chapter 3, Chapter 7 and Article 3 of Chapter 13, if the place of business is within
three hundred feet (300') of any church, school or playground situated within a municipality or within
five hundred feet (500') of any church, school or playground situated outside of a municipality. Such
distances shall be computed by following the shortest route of ordinary pedestrian or vehicular travel
along the public thoroughfare from the nearest point of the grounds in use as part of such church,
school, or playground, which, as used herein, shall be defined as follows:
(1) "Church," an establishment, other than a private dwelling, where religious services are
usually conducted;
(2) "School," an establishment, other than a private dwelling, where usual processes of
education are usually conducted; and
(3) "Playground," a place, other than grounds at a private dwelling, which is provided by the
public or members of a community for recreation.
7. S.C. Code Ann. § 61-3-425 (Supp. 1995) prohibits the issuance of a license until the
applicant presents to the Department a signed statement both from the Department and the Internal
Revenue Service showing the applicant does not owe the state or federal government delinquent
taxes, penalties or interest.
8. No schools or playgrounds are within the proscribed proximity to render the proposed
location unsuitable.
9. A liquor license may be denied if, in the opinion of the fact finder, the applicant is not
a suitable person to be licensed. Wall v. S.C. ABC Commission, 269 S.C. 13, 235 S.E.2d 806
(1977).
10. A license may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1995) if the
applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a
sufficient number of licenses have already been issued in the state, municipality or community.
11. Whether there is adequate and proper police protection for an intended retail liquor
store is also a proper consideration. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972).
12. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact in deciding the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 595, 281 S.E.2d 118, 119 (1981).
13. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not
rights or property, but are 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 or license 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).
14. There has been no credible showing that the present location is unsuitable or is an
unfit location as a retail liquor store, that it would increase stress in terms of the residents' safety,
create traffic problems, or that a sufficient number of licenses have already been issued in this area.
Further, the proposed location is suitable and proper for the issuance of the license, based upon the
predominantly commercial nature of the western side of Cashua Street.
15. I conclude that the applicant meets all of the statutory requirements for holding a retail
liquor license and that the proposed location is a proper one for granting the retail liquor license.
ORDER
Based upon the above Findings of Fact, Discussion and Conclusions of Law, it is hereby:
ORDERED that the application of Thomas A. Gregg, Quinby Package Store, Inc., d/b/a
Quinby Wine & Spirits on Cashua for a retail liquor license at 327 S. Cashua Street, Florence,
Florence County, South Carolina be granted.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue the license
for a retail liquor license upon satisfactory evidence shown by the applicant that he owes no state or
federal delinquent taxes, penalties or interest, and upon payment of the required fees by the applicant.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
July 2, 1996 |
