SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1996) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1996) for a contested case hearing. The Petitioner, Mary T. Darr, seeks an off-premise beer and wine permit for Corner Party Shop and a retail liquor license for Corner ABC. The Department of Revenue made a Motion to be Excused which was granted by my Order dated June 25, 1998. A hearing was held on July 28, 1998, at the Administrative Law Judge Division.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestants, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.

2. The Petitioner seeks an off-premise beer and wine permit for Corner Party Shop and a retail liquor license for Corner ABC at 1389 W. Cherokee Street, Blacksburg, South Carolina.

3. The qualifications set forth in S. C. Code Ann. §61-4-520 and §61-6-110 (Supp. 1996) 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 five years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit. The Petitioner is also of sufficient reputation to receive a retail liquor license.

5. The Petitioner's business is located in a rural area of Cherokee County. The proposed location is not within 500 feet or unreasonably close to any church, school or playground.

6. No other member of Petitioner's household has been issued a retail liquor store license.

7. The Petitioner has not been issued more than three retail dealer licenses, nor does she have an interest, financial or otherwise, in more than three retail liquor stores.

8. The Protestants object to the issuance of a permit and license to the Petitioner for the following reasons:

a) Granting the license could result in traffic problems,

b) Granting the license could result in inappropriate behavior by Petitioner's patrons in front of the Protestants' children,

c) The retail liquor store's building at the proposed location violates the county building codes, and

d) The proposed location is too close to his residence.

9. The proposed location has been a cafe or a convenience store over the past 50 years. The Protestants live in the house next to the proposed location. They contend that the proposed location is unsuitable because of its proximity to their residence. Following the shortest route of ordinary pedestrian travel along the public thoroughfare, the Protestants' residence is located 165 feet from the Petitioner's business. However, Mr. Reed testified that the corner of the Petitioner's property, where individuals often park, is only 35 feet from his home. Furthermore, individuals often park on a paved portion of the roadside in front of the Protestants' property. The Protestants contends that problem will be further exacerbated if the license and permit are granted.

10. The Protestants also contend that the location is not suitable because their children may be exposed to intoxicated individuals and crime may be increased in the area. However, it is unlawful for the Petitioner to sell beer, wine or alcohol to an intoxicated person. See, S.C. Code Ann. §§ 61-4-580 and 61-6-1500 (Supp. 1997). Furthermore, a large natural barrier approximately 20 feet tall separates the Protestants' residence from the proposed location. Therefore, it would be difficult for the children to see the patrons of the Petitioner's businesses entering and exiting the stores.

11. The Protestants' argument that granting the license could result in an increase in criminal behavior by the patrons of the Petitioner's businesses was not supported by any evidence. The Protestants presume, without any evidentiary support, that the patrons of the Petitioner's businesses will commit criminal behavior simply because a retail liquor store and a convenience store with an off-premise permit is opened at the proposed location. Furthermore, the evidence did not establish that granting a permit and license to the Petitioner would potentially create a dangerous traffic situation. In fact, there have not been any recent accidents at the intersection where the proposed location is situated.

12. The proposed location is suitable for the off-premise sale of beer and wine and a retail liquor license only with the restrictions set forth below. Specifically, the determination of suitability

in this case is based upon the Petitioner restricting the parking of her patrons solely to her property and insuring that the Protestants' children are not exposed to improper behavior by the patrons of her businesses.

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1996) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1996) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1996) sets forth the requirements for the issuance of a beer and wine permit.

4. S.C. Code Ann. §§ 61-6-110, et seq. (Supp. 1996) sets forth the requirements for

determining eligibility for a retail liquor license.

5. S.C. Code Ann. § 61-6-120 (Supp. 1997) provides that:

The department shall not grant or issue any license provided for in this article or Article 7 of this chapter, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground. . . .

6. S.C. Code Ann. § 61-6-1510 provides that "[a] retail dealer must maintain a separate store or place of business with not more than two means of public ingress or egress which must be on the front or the same side of the building, except that the doors may be located at the corner of two adjacent sides of the building."

7. 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).

8. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit or license using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

9. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite 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).

10. 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).

11. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

12. 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, 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 to 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.

13. The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit and a retail liquor license at the proposed location with the following restrictions..

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

ORDERED that Mary T. Darr's off-premise beer and wine permit application for Corner Party Shop and retail liquor license application for Corner ABC be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to the above restrictions that are set forth below:

1. The Petitioner shall absolutely prohibit parking by patrons of either the Corner Party Shop or Corner ABC from occurring in front of the Protestants' home.

2. The Petitioner or her employees shall monitor the parking area outside the Corner Party Shop or Corner ABC to insure that there is no loitering in the parking area and that there is no consumption of beer, wine or alcohol in the parking area of the location. The Petitioner shall have a specific employee assigned to constantly monitor the parking area while beer or wine is served or sold. Furthermore, the Petitioner shall monitor the parking area to insure that no loud music emanates from that area.

IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit and license 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 and retail liquor license upon the payment of the required fee and cost by the Petitioner.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

August 24, 1998

Columbia, South Carolina