SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the renewal application of Joyce B. Altman, d/b/a Bone's Grocery, for an on-premises beer and wine permit for the business located at 9833 Powell Road, Georgetown, South Carolina. The South Carolina Department of Revenue would have issued the permit but for the protests filed which raised the issue of suitability of Petitioner's location. After notice to the parties, a hearing was conducted on May 28, 1998 in Charleston, South Carolina. Protestants present at the hearing moved to intervene. The Christian Men's Breakfast Club was admitted as a party. Based upon the evidence presented, the renewal application for the on-premises beer and wine permit is denied. The Petitioner, however, may continue to sell beer and wine for off-premises consumption. Any issues raised in the proceeding or hearing of this matter that are not addressed in this Order are deemed denied. ALJD Rule 29(C).

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

1. In February of 1998, the Petitioner, Joyce B. Altman, submitted a renewal application for an on-premises beer and wine permit for Bone's Grocery located at 9833 Powell Road, Georgetown, South Carolina.
2. The parties stipulated that the Petitioner meets the qualifications set forth in S.C. Code Ann. § 61-4-520 concerning residency, age, and moral character as well as the publication and notice requirements.
3. The parties also stipulated that the Petitioner has continuously held an on-premises beer and wine permit at the subject location since June 9, 1983.
4. The Petitioner's father owned and operated Bone's Grocery from 1971 to 1991. The Petitioner has operated the location since 1991. The Petitioner's husband helps her run the store.
5. The location operates as a convenience/grocery store. The daily hours of operation are from 9 a.m. until 9 p.m. The location is closed on most Sundays.
6. The Petitioner owns the land and building of Bone's Grocery. The front portions of the building constitute the store, and the Petitioner's residence is connected to the store on the inside of the building.
7. There are no public restroom facilities in the store. The only bathroom available to customers is one located in the Petitioner's residence. Customers who consume beer or wine on the premises are allowed to do so at the counter inside the store. Some drink in the parking lot. There is no seating available for the on-premises consumption. Petitioner does not allow customers to tarry after consumption of the beverages.
8. The area immediately surrounding the location has a crime problem, and many people gather in and around Bone's Grocery. Petitioner does not hesitate to contact law enforcement if necessary and has posted signs prohibiting loitering. Petitioner has also provided unlimited access to the Sheriff's department in order to help reduce criminal activity. The location itself has been burglarized on several occasions.
9. The Georgetown County Sheriff's Office protested the renewal application on the basis of repeated criminal activity or disturbances at the location and in the immediate vicinity. According to the testimony, eighty to eighty-five percent of the type of crime occurring in the vicinity is alcohol related or drug offenses. The incidents involved trespassing, assault and battery, malicious injury to real property, alcohol and drug-related offenses, disorderly conduct and breach of the peace, weapons violations, and robbery. The Sheriff's Office expressed hope that denial of the on-premises permit would reduce the criminal activity in the community. Although he protested the renewal of Petitioner's on-premises beer and wine permit, the Sheriff did not object to issuance of an off-premises license.
10. The Mount Zion AME Church is located approximately 800 feet from the location. The pastor, Reverend Alfred Darby, protested the renewal of the permit based on the loitering around the location and the location's general detriment to the community. Rev. Darby expressed concern for juveniles who may patronize the location and are exposed to the beer and wine and possible criminal activity.
11. The Intervenor protested the application because of the loitering in the parking area, drinking and urination outside of the building, and concern about drug activity in the vicinity of the store.
12. The protestors readily admit there is an ongoing problem with criminal activity in the community, but they believe the presence of Bone's Grocery contributes to this activity.
13. The location's history of criminal activity in recent years and the lack of a separate restroom facility for customer use renders the location unsuitable for an on-premises beer and wine permit.

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

1. The Administrative Law Judge Division has subject-matter jurisdiction in contested cases including the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260 (Supp. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (1986 & Supp. 1997); South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1997).
2. "A person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1997).
3. 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:

(1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character. . . .

...

(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.

1. The factual determination of whether or not an application is granted or denied is within the prerogative of the executive agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
2. 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).
3. As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business 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 (Ct. App. 1984).
4. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve 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).
5. In considering suitability of location, it is relevant to consider the history of the location and to determine whether the testimony in opposition of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Id.
6. Where crime is a factor in a community, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); see also Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (holding that fact finder may consider whether "there have been law enforcement problems in the area").
7. The fact that the issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994).
8. A beer and wine permit issued by the State is a privilege granted in the exercise of the police power of the state. It may be used and enjoyed only so long as the restrictions and conditions governing it are fulfilled. This Division is authorized to place restrictions and conditions on the permit or license. See Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). In an effort to help control the loitering and prevent interference with church activities, the location should not be open on Sunday.
9. The evidence clearly establishes that this business has been the location of numerous criminal disturbances in the past. The character of the business would remain the same and would continue to present a challenge for law enforcement. Without the ability to consume beverages on the premises, the possibility of loitering outside and lingering on premises is decreased.
10. To prevent public urination and other nuisances the building must be equipped with a functioning public rest room for its customers if it is to be licensed for on-premises consumption. The use of a private rest room for a commercial enterprise does not satisfy this basic requirement. See Branham v. S.C. Dept. of Revenue, ALJD Docket No. 94-ALJ-17-0105-CC (June 24, 1994).
11. The location is unsuitable for the issuance of an off-premises beer and wine permit. Petitioner may continue to sell beer and wine for off premises consumption. A permit for off-premises consumption does not allow any consumption of beer or wine on the property not just within the building. Thus, consumption of beer or wine in the parking area on Petitioner's property is prohibited and may subject Petitioner to citation for an administrative violation of the laws relating to the sale of beer and wine.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the renewal application of Joyce B. Altman, d/b/a Bone's Grocery, for an on-premises beer and wine permit for the location at 9833 Powell Road, Georgetown, South Carolina is denied.

IT IS FURTHER ORDERED that the Petitioner may continue to sell beer and wine for off- premises consumption upon the condition that the location is closed on Sunday.

AND IT IS SO ORDERED.

__________________________________

ALISON RENEE LEE

ADMINISTRATIVE LAW JUDGE

July 7, 1998

Columbia, South Carolina