ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2001) and
S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2001) for a contested hearing. The Petitioner, Heer International, Inc.,
d/b/a Simba Express, seeks an off-premise beer and wine permit for its location at 1600 Holland Street, West Columbia,
South Carolina, South Carolina. Respondent South Carolina Department of Revenue (Department) filed a Motion to be
Excused setting forth that but for the protests of the Protestants, this permit would have been issued. This motion was
granted by my Order dated December 6, 2002. A hearing was held before me on January 9, 2003, at the offices of the
Administrative Law Judge Division (Division) in Columbia, South Carolina.
MOTION TO INTERVENE
Prior to the hearing into this matter, Derrick L. Williams, attorney for Protestant Hope in Christ Church of the Nazarene
(the Church), filed a Motion for Leave to Intervene on December 9, 2002, requesting to participate fully in this proceeding
as a party. Marlene T. Sipes, attorney for the Petitioner, had no objection to this motion. Accordingly, the caption has been
amended to reflect the Church's admission as a Respondent in this matter.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of proof upon the parties and the Protestant, I make the following Findings of Fact by a
preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestant, and the
Respondents.
2. The Petitioner seeks an off-premise beer and wine permit for Simba Express, located at 1600 Holland Street, West
Columbia, Lexington County, South Carolina.
3. The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2001) concerning the residency and
age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within
the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general
circulation.
4. The proposed location is a convenience store that has previously been permitted for the sale of beer and wine off-premises for over twenty-five (25) years. However, the previous permit expired, resulting in the Petitioner's application
that is the crux of this case. This store is situated in an area that is both commercial and residential. Although the character
of the area has not substantially changed since it was permitted in the past, movements have been made by local property
owners to improve this area. Interestingly, the vast majority of those improvements have been made by Mr. Stacy, the
owner of the building which houses Simba Express. He has purchased, cleaned up, and improved several other residential
properties in close proximity to the proposed location. Also, a neighborhood action group has been formed that is trying to
improve the overall character and aesthetics of the area.
Though the proposed location is situated in an increased crime area, no evidence was presented at the hearing that the
location is currently creating an additional burden upon law enforcement. More specifically, Simba Express has
experienced no problems with law enforcement since it has been operating. In the past when this location was permitted as
"A Real Corner Store," local law enforcement had problems gaining cooperation from the previous manager and tenant.
However, the location's new ownership and management encourages and invites local law enforcement to frequent the
location and to park in the store's parking lot.
5. The issuance of the permit is contested by Reverend Judy H. Williams, pastor of Hope In Christ Church of the Nazarene,
and Lawrence Light, a nearby resident. They object to the issuance of this permit because they feel that the sale of beer and
wine from this location creates an adverse impact on a neighborhood that is already greatly troubled. The Church and Mr.
Light are concerned about crime in the area which may be brought about by loitering around the proposed location and
trash, in the form of beer bottles, cans and cigarettes, being thrown around the store. Rev. Williams is particularly
concerned about the litter her church is constantly cleaning up on the Church's property, which is directly adjacent to
Simba Express. Also, Mr. Light believes the location itself is an "eyesore" to a community that is trying to better itself
aesthetically.
6. The Church's and Mr. Light's arguments appear to be based on a sincere concern for their community. However, though
the evidence offered raises "potential" concerns that this business would change the integrity of the vicinity or create an
overall adverse impact on the community, the evidence did not establish that the granting of the permit for this location will
augment the criminal activity in this area or have an overall adverse impact on the community.
In order to deny this permit, direct evidence of an adverse impact on the community is necessary, particularly in light of the
fact that the site of the proposed location has been previously permitted. If that change occurs after the Petitioner receives
this permit, the proposed location would no longer be suitable and the Department could properly bring an action to revoke
the Petitioner's permit. Therefore, I find that the Petitioner's proposed location is suitable for an off-premise beer and wine
permit, with the restrictions set forth below.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 2001) grants jurisdiction to the Administrative Law Judge Division to hear contested
cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2001) grants the Division
the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2001) set forth the requirements for the issuance of a beer and wine
permit.
3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the
fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). As the trier
of fact, the Administrative Law Judge is authorized to determine 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 Commission,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). The determination of suitability of location is not necessarily a function
solely of geography. It involves a variety of considerations related to the nature and operations of the proposed business
and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335
(1985). Additionally, without sufficient evidence of an adverse impact on the community, the application must not be
denied if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient
reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating
Liquors § 119 (1981).
4. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather,
privileges granted in the exercise of the State's police power to be used and enjoyed only so long as the holder complies
with the restrictions and conditions governing them. The Administrative Law Judge Division, as the tribunal authorized to
grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C.
Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the
imposition of restrictions on permits, provides:
Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit
between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission,
will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and
wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the
effective administration of beer and wine permittees.
In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been
knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend
or revoke said beer and wine permit.
5. The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit at the proposed location
with the following restrictions set forth below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an off-premise beer and wine permit of Heer International, Inc., d/b/a Simba Express,
be granted, with the following restrictions set forth below:
1. The Petitioner or his employees shall monitor the parking area to insure that no loitering is taking place in the location's
parking lot; and
2. The Petitioner or his employees shall monitor the parking area to insure that trash is collected from the area and to make
all best efforts to prevent customers of the location from depositing trash upon the Church's property.
IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit
and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department of Revenue issue an off-premise beer and wine permit upon the
payment of the required fees and costs by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
January 31, 2003
Columbia, South Carolina |
