ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1996) and S.C. Code Ann. § 61-1-55 (Supp. 1995) upon the filing of an application by
Julie Detwiler of Larry Detwiler Associates, ("Petitioner") for renewal of an on-premises beer
and wine permit for Jabills Stop N Shop on Highway 25, Ware Shoals, in Laurens County, South
Carolina. The Petitioner, Julie Detwiler, filed a renewal application for an on-premises beer and
wine permit [BW 647700; AI# 104255] with the South Carolina Department of Revenue
("DOR"). Several written protests were received by DOR in opposition to the permit renewal,
and the case was transmitted to the Administrative Law Judge Division ("ALJD"). Protestant
George Estes moved to intervene and was admitted without objection. A contested case hearing
was conducted on April 17, 1997, at the ALJD in Columbia. Upon review of the relevant and
probative evidence and applicable law, the application for an on-premises beer and wine permit
is granted.
DISCUSSION
The parties stipulated at the hearing that the only issues in dispute were the suitability of
the location and the proposed business activity. The Intervenor-Protestant contends that the
location is unsuitable because inadequate parking presents a danger to traffic and pedestrians, the
proposed location has attracted criminal activity, and patrons of the proposed location create an
excessive disturbance in the area. Testifying at the hearing in protest of the proposed location
were George Estes and Truman C. Henderson.
Larry Detwiler, husband of the Petitioner and co-owner of the proposed location, and
Diane Hornsby, manager of the business, testified in support of the renewal application.
Petitioner maintains that there is adequate customer parking to accommodate the present level of
patrons. The proposed location was originally purchased by Petitioner because of its
attractiveness as a site for video poker operations, being situated in a county in which operation
of video poker machines was legal and in close proximity to three counties in which it was not.
Initially, business was brisk, and customer and vehicular traffic was heavy at times.
Subsequently, the South Carolina Supreme Court issued an opinion in which it struck down the
statute which allowed counties the local option of outlawing video poker. As a result, the three
counties bordering the proposed location saw a revitalization of video poker business, and the
proposed location realized a substantial decrease in business and traffic.
The only recent criminal activity relating to the proposed location since Petitioner's
ownership involved an altercation between two patrons, the arrest of a patron for driving under
the influence, and several robberies of the proposed location. No charges were pressed against
the owners, managers, or employees of the proposed location in the incidents involving patrons.
By altering its hours of operation to remain open twenty-four hours a day, the proposed location
has reduced its susceptibility as a target for burglars and vandals. Since opening the proposed
location, there have been no criminal or administrative citations or warnings issued to Petitioner.
Protestants cite recent litter and vandalism problems in the area, claiming that the proposed
location is the likely source, but they can offer no probative evidence to substantiate those
beliefs. Complaints of excessive noise and traffic problems in the area can be attributed to the
proposed
location; however, the significant decrease in business and traffic at the proposed location since
November, 1996, diminishes the weight of those objections.
It is significant that the proposed location has operated as a convenience store for over
thirty years and has been licensed to sell beer and wine during the entire period. It is also
noteworthy that another licensed establishment is located just across the road from the proposed
location. While some area residents may find the existence of the proposed location unpleasant,
there was no persuasive evidence to establish that it is any less suitable now to sell beer and wine
than it was when this permit or previous permits were issued.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
- Petitioner seeks renewal of on-premises beer and wine permit BW 647700, for a location
known as Jabills Stop N Shop, f/k/a Rayfords, at Box 291, Route 1, Highway 25, Ware
Shoals, Laurens County, having filed a renewal application with DOR on November 11,
1996.
- Upon motion granted, DOR was excused from appearance at and participation in the
contested case hearing on the ground that it would have granted the permit renewal but
for the unanswered question of the suitability of the proposed location.
- Upon motion and without objection, George Estes was admitted as an Intervenor-Protestant.
- Notice of the time, date, and location of the hearing was given to all parties and
protestants.
- The DOR file was incorporated into the record at the hearing without objection.
- The proposed location is located in an unincorporated area of Laurens County on
Highway 25 N., near the Town of Ware Shoals.
- The area immediately surrounding the proposed location is rural in nature and includes
commercial and residential properties.
- The proposed location has operated as a convenience store by Petitioner and her husband
since July 3, 1995, offering miscellaneous items, such as gasoline, snacks, cold
medicines, toiletries, soft drinks, fishing tackle, beer, and wine.
- The business includes coin-operated video poker machines, a food counter, and bar.
- For over 30 years, the proposed location has operated as a convenience store licensed to
sell beer and wine under various owners, holding both on-premises and off-premises
permits.
- God's Store Front, a mission store operated by The Full Gospel Tabernacle Church of
Ware Shoals selling donated items to fund charity work for the poor, is located 841 feet
from the proposed location.
- Worship services are not conducted at God's Store Front.
- Intervenor George Estes resides approximately 366 feet from the proposed location.
- There are approximately five inhabitated residences within 1,400 feet of the proposed
location.
- M & R Foods, another convenience store licensed to sell beer and wine, is located across
the road from the proposed location.
- The proposed location was originally purchased by Petitioner because of its attractiveness
as a site for video poker operations.
- The proposed location is located in the western portion of Laurens County in close
proximity to Abbeville, Greenwood, and Anderson Counties.
- At the time Petitioner purchased the proposed location, the operation of video game
machines for cash payout was legal in Laurens County, but not in Abbeville, Greenwood,
and Anderson Counties.
- Because of the nonexistence of legal cash payout machines in their county and the
proximity of the proposed location, many residents of Abbeville, Greenwood, and
Anderson Counties travelled to the proposed location to play video poker.
- Pursuant to the opiniogon of the South Carolina State Supreme Court rendered in the case
of Martin v. Condon, ___ S.C. ___, 478 S.E.2d 272 (1996), issued November 4, 1996,
statutes providing counties with a local option to determine the legality of nonmachine
cash payouts from coin-operated video game machines were held to be unconstitutional.
- Administrative notice is hereby taken of the Court's decision in Martin v. Condon, ___
S.C. ___, 478 S.E.2d 272 (1996), its date of issuance by the Court, and the impact it had
upon the video gaming industry in the area surrounding the proposed location.
- From its opening by Petitioner until approximately the date of issuance of the Martin
decision on or about November, 1996, business at the proposed location was brisk, with
customer and vehicular traffic heavy at times.
- There are approximately fifteen (15) parking spaces at the proposed location.
- Because of the limited parking available at the proposed location, during peak business
hours some patrons would park automobiles along the road right-of-way on either side of
the road in front of the proposed location.
- During peak business hours, patrons would sometimes make noise or congregate outside
of the proposed location in or near their cars.
- Parking along the road right-of-way, especially at night, may create a hazard to drivers
and pedestrians.
- After issuance of the Martin decision on or about November 4, 1996, the three counties
bordering the proposed location saw a revitalization of video poker business, and the
proposed location realized a substantial decrease in business and traffic.
- Business at the proposed location has decreased approximately 60-70% since the issuance
of the Martin decision.
- Since approximately November, 1996, parking at the proposed location has not been a
problem.
- The only criminal activity relating to the proposed location since Petitioner's ownership,
involved an altercation between two patrons, the arrest of a patron for driving under the
influence, and several burglaries of the proposed location.
- No charges were pressed against the owners, managers, or employees of the proposed
location in the incidents involving patrons.
- By altering its hours of operation to remain open twenty-four hours a day, the proposed
location has reduced its susceptibility as a target of burglars and vandals.
- The proposed location is within the jurisdiction of the Laurens County Sheriff's
Department.
- Response time for the Sheriff's Department to the proposed location is approximately 25-35 minutes.
- Store manager Diane Hornsby has extensive experience managing and operating
businesses licensed to sell beer and wine.
- Manager Diane Hornsby regularly consults with the local SLED Alcohol Enforcement
Unit agent for advice and information relating to employee training, enforcement
procedures, and changes in the law relating to the sale and service of beer and wine.
- Since opening the proposed location, there have been no criminal or administrative
citations or warnings issued to Petitioner.
- Petitioner has never been cited for any violations of the alcoholic beverage control laws
nor ever had a permit to sell beer and wine revoked.
- Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and
has maintained her principal residence in South Carolina for more than thirty days.
- Petitioner is of good moral character.
- Petitioner is a fit person to sell beer and wine.
- Protestants' contention that renewal of the permit would detrimentally affect the well-being of the community was based upon generalities, opinions, and conclusions, without
factual support.
- Based upon the extensive and continuous history of the proposed location as a licensed
location for on and off-premises beer and wine sales, the existence of another licensed
location in close proximity, the decreased business and traffic at the proposed location
since the issuance of the Martin decision in November, 1996, and the lack of relevant,
probative evidence of unsuitability, the proposed location is suitable to continue to be
licensed to sell beer and wine for on-premises consumption.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
- The South Carolina Administrative Law Judge Division has jurisdiction over this subject
matter pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1995) and 1-23-310, et seq. (1986
& Supp. 1996).
- S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met by an applicant
for renewal of a beer and wine permit.
- "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed."
Palmer v. South Carolina Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984).
- As the trier of fact, an administrative law judge is authorized to determine the fitness or
suitability of the proposed business location of an applicant for a permit to sell beer and
wine using broad but not unbridled discretion. Byers v. South Carolina Alcoholic
Beverage Control Comm'n, 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
operation of the proposed business and its impact on the community within which it is to
be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
- While proximity of a church, residence, playground, or school to a proposed location
may, in and of itself, be adequate grounds for denial of a beer and wine permit, there is no
minimum distance requirement. William Byers v. S.C. ABC Commission, 305 S.C. 243,
407 S.E.2d 653 (1991). S.C. Code Ann. § 61-3-440 (Supp. 1995) dictates that an
establishment located outside of a municipality licensed to sell liquor must be a minimum
of five hundred (500') feet from any church, school, or playground, but there is not a
similar statute applicable to establishments which sell beer and wine.
- A court may admit into evidence and consider, without proof of the facts, matters of
common and general knowledge by taking judicial notice of such facts. State v. Broad
River Power Co., 177 S.C. 240, 181 S.E. 41 (1935); 31 C.J.S. Evidence §§ 6 and 9
(1964).
- The South Carolina State Supreme Court's decisions are public records which are
regularly published and easily accessible. The Court's decision in Martin v. Condon, ___
S.C. ___, 478 S.E.2d 272 (1996), and its legal effect upon the video gaming industry were
widely reported by the news media. All parties at the hearing admitted to being familiar
with the ruling and its legal effect. Accordingly, those facts are of sufficient notoriety as
to make it proper to assume their existence without proof, pursuant to Rule 201, SCRE.
See also, Moss v. Aetna Life Ins. Co., 267 S.C. 370, 228 S.E.2d 108, 112 (1976); Eadie
v. H.A. Sack Co., ___ S.C. ___, 470 S.E.2d 397, 401 (Ct. App. 1996).
- When the relevant testimony of those opposing the permit consists entirely of opinions,
generalities, and conclusions not supported by fact, the denial of the permit on the ground
of unsuitability of location is unfounded. Such unsupported allegations are an
insufficient basis for denial of a permit. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281
S.E.2d 181 (1981); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
- A renewal application must not be denied if only generalities, opinions, conclusions, and
hearsay support accusations of unsuitability. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d
301 (1972).
- Prior suitability is a factor to be considered. There is no evidence that the proposed
location is any less suitable now than it was when previously licensed over the past
decades. Taylor v. Lewis, supra.
- The existence of another business in close proximity which is licensed to sell beer and
wine is evidence of suitability of the proposed location. Taylor v. Lewis, supra.
- There is no evidence that the crime rate or traffic at the proposed location is higher now
than since the last permit was issued. Ronald Byers v. S.C. ABC Commission, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
- The experience of Petitioner's manager in managing licensed locations without violation
of the alcoholic beverage control laws is persuasive evidence of her ability to oversee the
business activity of the proposed location in a responsible manner.
- Based upon the history of the proposed location as a licensed location, the existence of
another licensed location in close proximity, the decreased business and traffic at the
proposed location since November, 1996, and the lack of relevant, probative evidence of
unsuitability, the proposed location is suitable to continue to be licensed to sell beer and
wine for on-premises consumption.
- Petitioner meets the statutory requirements to hold a permit to sell beer and wine. S.C.
Code Ann. § 61-9-320 (Supp. 1995).
- Any issues raised in the proceedings not addressed in this order are deemed denied
pursuant to ALJD Rule 29(B).
ORDER
IT IS THEREFORE ORDERED that the beer and wine permit renewal sought by
Petitioner is granted.
______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 9, 1997
Columbia, South Carolina |
