South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Carold L. Ferguson and Leonard Canfield, d/b/a Todds Grocery vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Carold L. Ferguson and Leonard Canfield, d/b/a Todds Grocery

Respondents:
South Carolina Department of Revenue

Intervenor:
T. Edwin McAllister
 
DOCKET NUMBER:
96-ALJ-17-0178-CC

APPEARANCES:
Carold L. Ferguson, Pro se, for Petitioner

Arlene D. Hand, Esq., for Respondent, Excused from Appearance

James H. Harrison, Esq., for Intervenor
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Carold L. Ferguson (Ferguson) of Mt. Carmel, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit for Hwy. 81, Main Street, Mt. Carmel, South Carolina. T. Edwin McAllister (McAllister), filed a protest seeking to prevent DOR from granting the license and McAllister intervened as a party. A hearing on the application was required since "[n]o application for [a] beer and wine permit will be approved by the South Carolina Alcohol Beverage Control Commission [now DOR] unless a hearing is held in the matter when the issuance of the permit is protested by one or more persons." 23 S.C. Code Regs. 7-90 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing required by Regs. 7-90, with such hearing held under the contested case provisions of S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1995).

After considering all of the evidence and relevant factors, the permit is granted with restrictions. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). 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 29(C).

II. Issue


Does Ferguson meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995) by demonstrating he possess good moral character, has been a legal resident of the United States and South Carolina for 30 days, has held a principal place of abode in South Carolina for 30 days prior to filing the application, has not had a beer or wine permit revoked within two years of the date of the current application, is over twenty-one years of age or older, will utilize the permit at a proposed location that is proper, and gave notice of the application by way of required advertising by newspaper and the display of signs?

III. Analysis

1. Positions of Parties:

Ferguson asserts that he meets all the requirements of the statute. DOR states that due to the protest, no permit could be granted and it awaits the outcome of this hearing. McAllister asserts the permit should be denied since the proposed location is not proper.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about February 6, 1996, Ferguson filed an application with the Department of Revenue for an on-premises beer and wine permit.

2. The application is identified by DOR as AI 107160.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is Hwy. 81, Main Street, Mt. Carmel, South Carolina.

4. The nature of the business is that of a produce store and convenience store which also provides a lunch menu.

6. Except for the unresolved issue of suitability of location, DOR would have issued the permit.

7. The hearing on this matter was held May 10, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and McAllister.

b. Moral Character

8. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.

9. The SLED report revealed no criminal violations within the last ten years involving moral turpitude.

10. The applicant has not engaged in acts or conduct that imply the absence of good moral character.

11. The applicant is of good moral character sufficient for the issuance of a beer and wine permit.

c. Legal Resident and Principal Place of Abode

12. Ferguson was born in South Carolina and has resided in South Carolina since his birth.

13. Ferguson holds a valid South Carolina driver's license.

14. Ferguson currently resides at Route 4, Box 240, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

15. Ferguson is both a legal resident of the United States and South Carolina and held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

d. Prior Revocation Of Beer or Wine Permit

16. Ferguson holds a beer and wine permit for another location.

17. Ferguson has never had a beer and wine permit revoked.

e. Age

18. Ferguson's date of birth is September 21, 1947.

19. Ferguson is over twenty-one years of age.

f. Proposed Location

20. Prior owners have operated with beer and wine permits at the existing location for over thirty years.

21. The applicant will continue the same general business as the prior owners but will expand the business to include the sale of vegetable produce and typical short order food items such as hamburgers, hot dogs, etc.

22. The providing of produce and short-order food items by the proposed location is an asset to the community in that no outlets in the immediate area provide such services.

23. A retail general commercial business selling furniture and miscellaneous items is located next door to the proposed location.

24. During the prior owners' operations, problems which impacted on the community were encountered consisting of loitering, patrons drinking outside the location, excessive noise outside the location, and urination in the street.

25. The proximity to churches and residences poses not problem to the community.

26. The location is adequately served by the traffic route of Hwy. 81.

27. Hwy. 81 is part of a scenic highway in South Carolina.

28. The area is predominately rural with some commercial development.

g. Notice

29. Notice of the Ferguson application was published in the McCormick Messenger, a newspaper published and distributed in McCormick County, with notice published on January 18, January 25, and February 1, 1996.

30. Notice of the Ferguson application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Mt. Carmel.

31. Ferguson gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.

32. Ferguson gave notice of the application by way of required advertising by newspaper and display of signs.

3. Discussion

a. General Criteria

There is no factual dispute in this matter as to the applicant's satisfying the requirements of good moral character, being both a legal resident of South Carolina for 30 days, having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine permit revoked within two years of the date of the current application, being at least twenty-one years of age, and providing proper notice of the application by way of newspaper and the display of signs. Rather, the only matter disputed is whether the proposed location is a proper one.

Under S.C. Code Ann. §61-9-320 (Supp. 1995), no beer and wine permit may be granted unless the location of the place of business is a proper location. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

While not all inclusive, numerous factors regarding proper location have been considered by the courts. The proximity of the location to residences, churches, schools, and playgrounds 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); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). The impact of the proposed location upon traffic in the area can be a consideration. Palmer, 317 S.E.2d at 478. The character of the entire area as rural versus commercial may be considered. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). The proximity of the proposed location to children may also be considered. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). It is relevant whether there are already similar existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Further, objections to the permit must be based upon adequate factual support. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

b. Basis For Decision

The purpose of the above discussion is to demonstrate that the decision of whether a proposed location is proper is highly factual and is based upon the weighing and balancing of numerous considerations. I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing.

I conclude the permit must be granted with restrictions. A factor in granting a permit is whether the location has in the recent past been permitted and then determining whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E. 801 (1973). Here, it is significant that prior owners have operated at the existing location with a beer and wine permit for a substantial number of years. While I note some problems have occurred outside the permitted location under prior owners, McAllister testified that conditions have improved during the time the location has been operated by Ferguson. In fact, McAllister testified that Ferguson's location is an asset to the area due to his providing fresh produce and short-order food items which had not been previously available in the community. Such an improvement to the community is a consideration in granting a permit. See Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972) (but for the beer and wine permit, witnesses conceded the establishment was an asset to the community). Additionally, given the generally rural nature of the community, the distances to churches and residences are sufficient not to present a problem to conducting worship services or residential living. Further, the area does have some commercial development. The convenience store to be operated by Ferguson is compatible with the community as it has existed over the last ten to fifteen years such that the granting of the permit will not significantly change the overall character of the area.

The granting of a beer and wine permit, however, is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976). Here, the mixed rural and commercial setting, the location of a retail business next door and the scenic highway designation requires that Ferguson assume some responsibility for activities of his patrons when such activities are related to the beer and wine permit. Accordingly, the permit is granted but with the restrictions as stated in the Order section below.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law: 1. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995).

2. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995).

3. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995).

5. The proximity of a proposed location to residences, churches, schools, and playgrounds can be a proper ground by itself to deny a permit to a proposed location. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

6. A factor in granting a permit is whether the location has in the recent past been permitted and then determining whether the location is now less suitable than in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E. 801 (1973).

7. A factor in granting a permit is whether the proposed location is an improvement to the community. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

8. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943).

9. Permits are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976).

8. Considering all relevant factors, with restrictions the proposed location is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

9. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995).

10. The applicant meets the requirements for the issuance of a beer and wine permit pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).

IV. ORDER


The application for an on-premises beer and wine permit at Hwy. 81, Main Street, Mt. Carmel, South Carolina shall be granted upon Ferguson signing an agreement with DOR to adhere to the following restrictions:

1. Consumption of beer or wine on the permitted premises will be confined to the interior of the location.

2. No beer or wine may be consumed in the parking lot or at any point along the entire front porch area of the location.

3. Ferguson must place a sign in a conspicous location inside his store with such sign stating in bold print, "Bathroom facilities available for all customers." The sign shall be no smaller than twelve inches by twelve inches with the message on the sign covering a space of eleven inches by eleven inches.

4. Ferguson must take steps to prohibit loitering on the property.

5. Ferguson must take steps to prohibit loud music or loud noise on the property.

Any failure to adhere to the restrictions shall be grounds for revocation of the permit.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 24th day of May, 1996

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court