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:
Margaret Chestnut, d/b/a Ninth Avenue Grocery Store and Ninth Avenue Liquor Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Margaret Chestnut, d/b/a Ninth Avenue Grocery Store and Ninth Avenue Liquor Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0619-CC

APPEARANCES:
Franklin R. DeWitt, Esquire, for Petitioner

Chief Gary C. Michell, pro se, Protestant
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §§ 61-2-260 (Supp. 1997), the Administrative Procedures Act, §§ 1-23-310 et seq. (1986 & Supp. 1997), and S.C. Code Ann. § 12-60-1320 (Supp. 1997) of the Revenue Procedures Act, upon an application for a retail liquor license and an off-premises beer and wine permit for the Ninth Avenue Grocery Store and Ninth Avenue Liquor Store, 1702 9th Avenue, Conway, South Carolina, by Margaret Chestnut, filed with the South Carolina Department of Revenue. A hearing was held on January 23, 1998 at the Horry County Courthouse to consider the suitability of the location for a retail liquor license and off-premises beer and wine permit. Based on the evidence presented and the applicable law, the application is denied.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

The Petitioner, Margaret Chestnut, seeks a retail liquor license and off-premises beer and wine permit for the Ninth Avenue Grocery Store and the Ninth Avenue Liquor Store at 1702 9th Avenue, Conway, South Carolina, having filed an application with the South Carolina Department of Revenue ("DOR") on July 29, 1997.

Gary C. Michell, chief of the Conway Police Department, filed a protest against the application because the business is located in a high-crime area in which many drug-related crimes are committed.

Notice of the time, date, place, and subject matter of the hearing was given to the Petitioner, protestants, and DOR.

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.

Margaret Chestnut, George Point, John R. Massey, Jr., Ronnie Friend, David Scott, and Walter Artis testified in support of the application.

Those testifying opposing the application were Capt. Bill Gagum of the Conway Police Department, Lessie Gore, and Willie Dozier.

The proposed location had been licensed to sell liquor, beer and wine for off-premises consumption for eleven years before the date of application.

The Ninth Avenue Grocery Store and the Ninth Avenue Liquor Store are located within the City of Conway on 9th Avenue, near Highway No. 378.

The proposed location consists of a grocery store, which sells mainly beverages and party supplies, and an adjacent liquor store.

The proposed location has been licensed to sell liquor and/or beer and wine for many years under various licensees.

The Ninth Avenue Liquor Store's hours of operation are from 9:00 a.m. until 7:00 p.m., Monday through Saturday. The Ninth Avenue Grocery's hours of operation are from 8:30 a.m. until 7:00 p.m., Monday through Saturday.

Parking consists of eight parking spaces immediately in front of the proposed location.

12. A public pay telephone is located beside the parking lot at the front of the proposed location.

13. The pay telephone is used by customers and non-customers.

14. The nearest location licensed to sell beer and wine is Papa's Room, 0.1 miles from the proposed location.

15. The proposed location is in a predominately residential area with some commercial properties.

16. The closest residence is 68 feet from the proposed location.

17. No school, church, or playground is within three hundred feet of the proposed location.

18. Children frequently walk from homes in the neighborhood, passing the proposed location, to Whittemore Park Middle School, located 0.3 miles from the proposed location.

19. The area surrounding the proposed location has a long and continuing history of problems involving loitering, littering, disorderly conduct, vagrancy, drug sales and use, public drinking, public urination, noise and other criminal activity.

20. The proposed location is a gathering point for many of the individuals engaged in the loitering, littering, disorderly conduct, vagrancy, drug sales and use, public drinking, public urination, noise, and other criminal activity.

21. Conway Police Department officers have answered many calls and made arrests at or near the proposed location involving charges such as larceny, robbery, assault, car-jacking, and distribution of illegal drugs.

22. The sale of beer and wine and liquor at the Ninth Avenue Grocery Store and the Ninth Avenue Liquor Store is a contributing factor to the existing law-enforcement problems at the location and the surrounding neighborhood.

23. Despite the location's past history as a licensed location, current criminal problems in and around the location render it unsuitable.

24. Petitioner is over twenty-one years of age, is a resident of the State of South Carolina, and has maintained her principal residence in South Carolina for more than thirty days before filing.

25. Petitioner has never had suspended or revoked any type of permit or license to sell alcoholic beverages.

26. Petitioner was cited for transfer of beer to a minor on May 19, 1995.



27. 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.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude as a matter of law, the following:

The Administrative Law Judge Division is empowered to hear this contested case pursuant to S.C. Code Ann. §§ 61-2-260 (Supp. 1997), the Administrative Procedures Act,

§§ 1-23-310 et seq. (1986 & Supp. 1997), and S.C. Code Ann. § 12-60-1320 (Supp. 1997) of the Revenue Procedures Act.

S.C. Code Ann. § 61-4-520 (Supp. 1997), which sets forth the requirements for the issuance of a beer and wine permit, provides as follows:

No permit authorizing the sale of beer or wine may be issued unless. . . .

(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

(7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches.

S.C. Code Ann. § 61-6-110 (Supp. 1997) of the Alcoholic Beverage Control Act provides the qualifications an applicant license must satisfy to receive a retail liquor license.

Pursuant to S.C. Code Ann. § 61-6-910 (Supp. 1997), a permit or license must not be issued if the applicant is not a suitable person to be licensed or the place of business is not a suitable place.

A liquor license is not a property right or contract, but a permit or privilege granted by the State in the exercise of its police powers to do what would otherwise be unlawful. The State may attach restrictions and conditions to limit the privilege. The issuance or refusal of licenses rests within the sound discretion of the official empowered to hear the matter. Wall v. South Carolina ABC Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977); See Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

"The issuance of a liquor license ordinarily rests within the sound discretion of the body or official to whom the duty of issuing it is committed; moreover, the power to issue such a license also involves the power to refuse it." Wall v. South Carolina ABC Comm'n, 269 S.C. 13, 15, 235 S.E.2d 806, 807 (1977) (citing Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972)); cf. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision).

State law authorizes the administrative law judge, as the trier of fact, to determine the fitness or suitability of a proposed location for a permit to sell beer and wine using broad but not unbridled discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (S.C. App. 1984).

Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); 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).

In considering whether a proposed location is suitable the finder of facts may properly consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (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 found. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

"[P]roximity of a location to a church, school or residence is a proper ground, by itself, on which the Commission may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991).

The denial of a permit to sell beer and wine should be upheld with a finding that the proximity of the proposed outlet would aggravate problems related to consumption of alcohol in public areas. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); cf. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (denial of beer and wine permit upheld where ABC Commission concluded that congregations of people on an applicant's property would be worsened by making cold beer immediately available); Roche v. South Carolina ABC Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975) (denial of a grocery-store operator's application for a retail permit to sell chilled beer and wine for off-premises consumption was supported by evidence that law enforcement officers in area had constant problems with public intoxication and that the neighborhood was predominantly residential in nature).

The proposed business activity is not proper for the proposed location considering the impact of the sale and consumption of beer upon criminal activity and law enforcement problems in the area. See Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984)

The proposed location is unsuitable for the sale of beer and wine because of the location's long-term history of attracting loitering, littering, disorderly conduct, vagrancy, drug sales and use, public drinking, public urination, noise and other undesirable activity.

The proposed business activity is not proper for the proposed location considering the impact of the sale and consumption of beer and wine and liquor upon criminal activity in the area.

The issuance of an off-premises beer and wine permit or a retail liquor license would have an adverse impact on the community.

The location of Ninth Avenue Grocery Store and the Ninth Avenue Liquor Store is unsuitable for issuance of either a beer and wine permit or a retail liquor license.

Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(B).













ORDER

IT IS THEREFORE ORDERED that the application for a retail liquor license and off-premises beer and wine permit for the Ninth Avenue Grocery Store and Ninth Avenue Liquor Store, 1702 9th Avenue, Conway, South Carolina, by Margaret Chestnut, is denied.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

February 19, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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