South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Thurman R. McElveen, Young's Food

Stores, Inc., d/b/a Young's Food Store #28 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Thurman R. McElveen, Young's Food

Stores, Inc., d/b/a Young's Food Store #28

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0672-CC

APPEARANCES:
Terrell T. Horne, Esquire, for Petitioner

Bill Clark, Rev. Bruce Watford and Terry Hinson, Protestants
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997) and S.C. Code Ann. § 61-2-260 (Supp. 1997) upon the filing of an application (AI#116630) by Petitioner, Thurman McElveen, for an off-premises beer and wine permit for a location at 1070 Highway 1 South, Lugoff, South Carolina. Upon receipt of written protests to the application, the South Carolina Department of Revenue (DOR) transmitted the case to the Administrative Law Judge Division for a hearing. The contested case hearing was conducted on February 11, 1998, at the Administrative Law Judge Division in Columbia, South Carolina. Testifying at the hearing in protest of the proposed location was Bill Clark, Rev. Bruce Watford, and Terry Hinson. Petitioner Thurman McElveen testified in support of the application. Upon review of the relevant and probative evidence and applicable law, I find the proposed location to be suitable and hereby grant the application for an off-premises beer and wine permit.

DISCUSSION

The proposed location has operated as a Young's convenience store and has been permitted to sell beer and wine for off-premises consumption since 1991. A new application for a beer and wine permit was necessary because a corporate consolidation recently took place in which approximately 40% of the corporation's ownership was transferred. The transfer of ownership requires a new application even though the control and management of the location will remain virtually unaffected by the stock buy out and corporate merger and consolidation.

Opposition to the new application is based primarily upon the proposed location's proximity to Lugoff Friendship Baptist Church and Protestants' religious opposition to the sale and consumption of alcohol. The testimony from one clergy member revealed that he opposed the sale and consumption of alcohol in any form, under any circumstances, and opposed the licensing of any location. The Court respects the right of an individual or a congregation to abstain from the purchase and consumption of alcohol and to not be disturbed by those who do choose to buy and drink beer, wine, or liquor. Standards for judging the suitability of a proposed location for the sale of beer and wine, however, are not determined by a local community's religious convictions or moral litmus test. Criteria must be uniform, objective, constant, and consistent throughout the state. The sale of beer and wine is a lawful enterprise in South Carolina, as regulated by the State. This Court has neither the authority nor the inclination to conduct local referenda on whether a particular community is opposed in principle to the sale of alcoholic beverages. This Court must decide to issue or deny a beer and wine permit based solely upon the relevant facts and the applicable law.

On the issue of whether the proximity of the proposed location to a church renders the location unsuitable, all relevant evidence must be examined. Protestants offered no probative evidence to establish that the location, as operated since 1991, has interfered with or negatively impacted church activities. Protestants speculated about the impact of beer sales upon the area's youth, but no substantive facts were established to prove the location unsuitable. Sheriff Steve McCaskill did testify that his office had received some complaints about underage beer sales at the proposed location, but the Sheriff did not oppose the permit application in his official capacity.

The record indicates that the past history of the proposed location has been relatively problem free. Young's has committed only one ABC violation at the proposed location since opening in 1991, and current management appears competent and conscientious. The proposed location is in a commercial area on a major thoroughfare. Young's owns and operates 41 stores, all of which hold beer and wine permits, and conducts extensive training of employees in the area of beer sales. The location is suitable to continue to sell beer and wine for off-premises consumption.

FINDINGS OF FACT

By the preponderance of the evidence, I make the following Findings of Fact:

Petitioner seeks an off-premises beer and wine permit for a location at 1070 Highway 1 South, Lugoff, South Carolina, having filed an application (AI# 116630) with DOR on July 31, 1997.

Petitioner Thurman R. McElveen is Vice President of Operations of Young's Food Stores, Inc.

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 but for the unanswered question of the suitability of the proposed location.

Bill Clark, the Lugoff Friendship Baptist Church, Rev. Bruce Watford, and Terry Hinson filed written protests to the issuance of the permit.

The proposed location is in an unincorporated area of Kershaw County on a major traffic thoroughfare.

The area immediately surrounding the proposed location is predominately commercial in nature and includes commercial and residential properties.

The proposed location is approximately 220 feet from the nearest residence.

The proposed location is approximately 757 feet from Lugoff Friendship Baptist Church.

The proposed location is approximately 905 feet from Lugoff Church of God.

The proposed location has held an off-premises beer and wine permit as Young's Food Store since 1991.

Young's filed a new application for a beer and wine permit for the proposed location and 40 other locations because a corporate consolidation recently took place in which approximately 40% of the corporation's ownership was transferred.

The control and management of the location will remain virtually unaffected by the stock buy out and corporate merger and consolidation.

Petitioner is of good moral character.

Petitioner is a fit person to sell beer and wine.

Petitioner has been cited for one violation of the alcoholic beverage control laws in the last two years.

Petitioner has never 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 his principal residence in South Carolina for more than thirty days.

Notice of application appeared in the Chronicle-Independent on August 1, 8 and 15, 1997.

The protestants are mainly opposed to alcohol because of moral and religious convictions.

No criminal arrests or convictions have taken place on the premises within the last several years.

The location has adequate parking and adequate control over litter in the area under management's control.

The location, as operated since 1991, has not interfered with or negatively impacted church activities at any of the neighboring churches.

The record indicates that the past history of the proposed location has been relatively problem free.

Young's current management is competent and conscientious, and has adequate policies and employee training programs to hinder underage beer sales.

Young's owns and operates 41 stores, all of which hold beer and wine permits, and conducts extensive training of employees in the area of beer sales.

The continued sale of beer and wine at the proposed location will not adversely affect the community.

The proposed location is suitable to continue to sell beer and wine for off-premises consumption.

CONCLUSIONS OF LAW

Based upon the 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. §§ 61-2-260 (Supp. 1997) and 1-23-310 et seq. (1986 & Supp. 1997).

"[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 ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

S.C. Code Ann. § 61-4-520 (Supp. 1996) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

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 ABC 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 by itself may be adequate grounds for denial of a beer and wine permit, there is no minimum distance requirement. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

When the relevant testimony of those opposing the permit consists of opinions, generalities, and conclusions unsupported by fact, the denial of a permit on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). Such unsupported allegations form 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).

The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).

Beer and wine have been sold at the same location for several years, and no evidence suggests that the proposed location is any less suitable now than it was when previously licensed. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

The issuance of the permit will not have an adverse impact upon the surrounding community.

The proposed location is suitable and proper, considering the nature of the business and the history of the proposed location, for the issuance of a beer and wine permit.

Petitioner meets the statutory qualifications to hold a permit to sell beer and wine. S.C. Code Ann. § 61-4-520 (Supp. 1997).

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

Based upon the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the off-premises beer and wine permit sought by Petitioner is granted.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

April 2, 1998

Columbia, South Carolina


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