SC Administrative Law Court Decisions

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 for an off-premises beer and wine permit for the southwest corner of the intersection of S.C. Highway 544 and Singleton Ridge Road, Conway, South Carolina, in Horry County. Following the receipt of written protests to the issuance of the permit, the matter was transmitted by the South Carolina Department of Revenue ("DOR") to the Administrative Law Judge Division ("ALJD") for a contested case hearing. A hearing was held on May 13, 1997. The issues considered were the suitability of the proposed business location for the sale of beer and wine and the suitability of the proposed business activity. Upon review of the relevant and probative evidence and applicable law, the application for an off-premises beer and wine permit is hereby granted.

By a preponderance of the evidence, I find:

1. Petitioner seeks an off-premises beer and wine permit for a location at the southwest corner of the intersection of S.C. Highway 544 and Singleton Ridge Road, Conway, South Carolina, in Horry County, having filed an application with the DOR, AI #111953, on November 21, 1996.
2. Notice of the time, date, place, and subject matter of the hearing was given to all parties and protestants.
3. Upon motion granted, DOR was excused from appearance at and participation in the hearing, based upon its assertion that but for the unanswered question of the suitability of the proposed location, it would have granted the permit sought.
4. The DOR file was incorporated into the record of the hearing.
5. At the hearing, Petitioner amended his application to correct a typographical error. Applicant's date of birth is not November 29, 1996, as shown on the application, but rather November 29, 1943.
6. Petitioner is the assistant secretary, agent, and attorney for The Pantry, Inc.
7. The Pantry, Inc. is a Delaware corporation headquartered in North Carolina operating a chain of neighborhood gas and convenience stores in the southeastern United States.
8. The Pantry, Inc. owns and operates 130 stores in South Carolina.
9. The Pantry, Inc. plans to construct and operate a neighborhood gas and convenience store at the proposed location and seeks to offer, among other sale items, beer and wine for off-premises consumption.
10. The proposed location is an unimproved lot in unincorporated Horry County on S.C. Highway 544, between Conway and Socastee.
11. S.C. Highway 544 is a heavily traveled highway which links traffic from Conway and U.S. Highway 501 to the beaches of Georgtown and southern Horry Counties.
12. The proposed location is a 200' x 210' lot under a contract of sale to The Pantry, Inc. from Jimmy Wood, located on the western side of S.C. Highway 544, directly across the highway from the point where Singleton Ridge Road intersects with Highway 544.
13. The proposed location is an outparcel of a larger tract of undeveloped land owned by Jimmy Wood.
14. Jimmy Wood plans to develop the remaining parcel as a carwash or some other commercial property.
15. Most of the surrounding undeveloped land in close proximity to the proposed location is in the process of being developed for use as commercial, office, or apartment properties.
16. At or near the point where it intersects with Highway 544, Singleton Ridge Road has recently been widened from a two-lane road to a three-lane road, with the addition of a turn lane.
17. S.C. Highway 544 is in the process of being widened.
18. A traffic light is expected to be installed at the intersection of Highway 544 and Singleton Ridge Road during the summer of 1997.
19. The area surrounding the proposed location was formerly undeveloped and rural but is being rapidly developed and becoming increasingly commercial.
20. The proposed location was rezoned by Horry County Council on February 4, 1997, from a Forest Agricultural classification to a Neighborhood Commercial classification.
21. Operation of a convenience store licensed to sell beer and wine for off-premises consumption is a permissible land use under the Neighborhood Commercial classification.
22. Other licensed locations are located on Highway 544 within one to one and one-half miles of the proposed location, including a nightclub, a supermarket, and several convenience stores.
23. A Citgo station and convenience store owned by Wilco, Inc., currently under construction on S.C. Highway 544 within one mile of the proposed location, has been issued an on-premises beer and wine permit.
24. Centenary United Methodist Church is located diagonally across Highway 544 from the proposed location, approximately 800 feet away.
25. Centenary United Methodist Church has plans to build a new education building and day care facility across the highway from the proposed location.
26. The widened corridor of Highway 544 will act as a natural physical buffer between Centenary United Methodist Church and the proposed location.
27. Sweetwater Branch Baptist Church is located north of the proposed location, on the same side of Highway 544 as the proposed location, approximately 1,000 feet away.
28. The proposed location will not increase the amount of traffic on Highway 544 or Singleton Ridge Road. As a convenience store, the business will rely upon the existing traffic.
29. The widening of Highway 544 and the installation of the traffic light will improve traffic congestion and driver safety in the area.
30. Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
31. Petitioner has not had a permit/license revoked in the last two years.
32. Petitioner is of good moral character.
33. Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.
34. Testifying at the hearing in support of the application were John Hearne, Pantry, Inc. Vice President of Real Estate, Jimmy Wood, the seller the of the proposed location to The Pantry, Inc., and Jimmy Jordan, the real estate broker who brokered the transaction and requested the zoning change for the proposed location.
35. Testifying at the hearing in protest to the issuance of a beer and wine permit for the proposed location were: Janice Skipper, Archie Brazier, and Walter Edwards, local residents and church members.
36. None of the Protestants oppose operation of the store or allege that Petitioner is unfit to hold a permit; Protestants merely oppose the sale of beer and wine in close proximity to their respective churches.
37. Protestants expressed concern that issuance of the permit would create crime and safety problems in the area but offered no factual support for the allegations.
38. Because of the increased development and commercialization of the surrounding area, the improvement of traffic conditions, the nature of the proposed business activity, and the lack of any probative evidence of the likelihood of an adverse impact upon the community, the proposed location is a suitable location for the sale of beer and wine for off-premises consumption.

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 has subject matter jurisdiction in this matter pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and §§ 1-23-310, et seq. (1986 & Supp. 1996).
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.
3. Petitioner meets the statutory requirements to hold a beer and wine permit.
4. 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. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. 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).
6. Only generalities, opinions, and conclusions, without factual support, were offered to support Protestants' contention that issuance of the license and permit would detrimentally affect the well-being of the community. Such unsupported allegations are an insufficient basis for denial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
7. The issuance of the permit would not have an adverse impact upon the surrounding community.
8. The proposed location is suitable to be licensed to sell beer and wine for off-premises consumption.

ORDER

IT IS THEREFORE ORDERED that the off-premises beer and wine permit applied for by Petitioner is granted.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

May 15, 1997

Columbia, South Carolina