South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Garland L. Zuber, Li'L Cricket Food Stores, Inc., d/b/a Li'L Cricket #261 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Garland L. Zuber, Li'L Cricket Food Stores, Inc., d/b/a Li'L Cricket #261

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
98-ALJ-17-0417-CC

APPEARANCES:
Walter B. Todd, Jr., Attorney for Petitioner

H. Willard Neese and Sidney Wait, (pro se) Spokespersons for 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 for an off-premises beer and wine permit for 2538 Two Notch Road, Columbia, South Carolina, in Richland County. Following the receipt of written protests to the issuance of the permit and a request for a hearing by Petitioner, the matter was transmitted by the South Carolina Department of Revenue ("DOR") to the Administrative Law Judge Division ("ALJD") for a contested case hearing. A hearing was held on September 8, 1998. The issues considered were the suitability of the proposed business location for the sale of beer and wine and the suitability of the proposed business activity. Upon review of the relevant and probative evidence and applicable law, the application for an off-premises beer and wine permit is hereby granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

  1. Petitioner seeks an off-premises beer and wine permit for a location at 2538 Two Notch Road, Columbia, South Carolina, in Richland County, having filed an application with the South Carolina Department of Revenue, AI #121033.
  2. Notice of the time, date, place, and subject matter of the hearing was given to all parties and protestants.
  3. 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.
  4. The DOR file was incorporated into the record of the hearing.
  5. Petitioner is an officer of Li'L Cricket Food Stores, Inc.
  6. Li'L Cricket Food Stores, Inc. is a corporation operating a chain of neighborhood gas and convenience stores in the South Carolina.
  7. Li'L Cricket Food Stores, Inc. owns and operates 81 convenience stores and 19 tobacco outlets in South Carolina.
  8. All 81 Li'L Cricket Food Stores, Inc. currently open for business have beer and wine permits.
  9. Li'L Cricket Food Stores, Inc. has constructed and plans to operate a neighborhood gas and convenience store at the proposed location and seeks to offer for sale, among other items, beer and wine for off-premises consumption.
  10. Adjacent to the convenience store, Petitioner has constructed a separate structure to operate a tobacco outlet.
  11. The proposed location was formerly a recycling center and was previously a gasoline service station.
  12. The former structure was demolished to allow construction of the proposed location.
  13. Prior to demolition, the recycling center was vacant.
  14. The new structures constructed by Petitioner are an aesthetic improvement over the old structure.
  15. The proposed location is within the City of Columbia in a heavily commercial, urban area on a heavily traveled thoroughfare.
  16. Within a one-mile radius of the proposed location are 83 commercial businesses.
  17. Within a two-mile radius of the proposed location are over 500 commercial businesses.
  18. On Two Notch Road, within one mile or less of the proposed location, there are approximately eight locations licensed to sell beer, wine, and/or liquor.
  19. Included among those licensed locations on Two Notch Road is an Amoco convenience and gas store approximately one block from the proposed location.
  20. Petitioner has received the appropriate zoning and building permits and occupancy certificate to open and operate a convenience store at the proposed location.
  21. The area surrounding the proposed location is commercial in nature with several residential neighborhoods in the vicinity.
  22. Many residents of the surrounding areas are elderly.
  23. The Two Notch Road corridor has experienced crime problems including littering, loitering, drug sales, and prostitution.
  24. Local citizens and business owners are currently involved with revitalization efforts along the Two Notch Road corridor.
  25. A City of Columbia Police Department substation is located on Two Notch Road within two blocks of the proposed location.
  26. Crescent Hill Baptist Church is located on the opposite side of Two Notch Road from the proposed location, approximately 1,099 feet away.
  27. Watkins Elementary School is located on Covenant Road, approximately 591 feet from the proposed location by the most direct route of vehicular travel and 179 feet from the proposed location by the most direct route of pedestrian travel.
  28. W.A. Perry Middle School and Richland School District One's Bolden Stadium are located within several blocks of the proposed location.
  29. At the intersection of Covenant Road and Two Notch Road is the former Midlands Shopping Center.
  30. Midlands Shopping Center is being converted into a children's center, which will house a fifty-bed residential facility for abused children and will include other various governmental service agencies.
  31. The children's center will be surrounded by a security fence, and the center's residents will have no visual contact with the outside world.
  32. The proposed location's expected hours of operation are 6:00 a.m.-1:00 a.m.


  1. If permitted, beer and wine sales are expected to amount to approximately only 15-25% of gross revenues of the store.
  2. Li'L Cricket Food Stores, Inc. provides training for all store employees regarding the law and company policies related to beer and wine sales.
  3. Li'L Cricket Food Stores, Inc. employees who violate beer and wine laws or policies are terminated.
  4. The proposed location will utilize electronic calendars to assist store clerks in determining whether patrons are of legal age to purchase beer, wine, or tobacco products.
  5. Li'L Cricket Food Stores, Inc. will enforce a "no loitering" policy at the proposed location by utilizing posted signs, outside lighting, surveillance cameras, and a privacy fence across the rear of the property.
  6. Protestants expressed concern that issuance of the permit would create or increase crime and safety problems in the area but offered no factual support for the allegations.
  7. Protestants' concerns were honestly offered, but were based upon generalities, speculation, and opinion.
  8. No evidence was presented to establish that the proposed location is the source of past or present law enforcement problems in the area.
  9. The operation of a commercial business at the proposed location, with the measures proposed to be undertaken by Petitioner to discourage loitering, makes it unlikely that the sale of beer and wine at the proposed location for off-premises consumption will create a criminal problem in the surrounding neighborhoods.
  10. Because of the nature of the proposed business activity, the number and proximity of other commercial businesses and other licensed locations, the management record and practices of Petitioner, and the lack of any probative evidence of the likelihood of an adverse impact upon the community, the proposed location is a suitable location for the sale of beer and wine for off-premises consumption.
  11. 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.
  12. Petitioner has not had a permit/license revoked in the last two years.
  13. Petitioner is of good moral character.
  14. 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.
  15. Petitioner is a suitable person to hold a beer and wine permit.


CONCLUSIONS OF LAW

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

  1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997).
  2. "[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).
  3. South Carolina Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the issuance of a beer and wine permit. Included among the factors for consideration is the suitability of the location.
  4. 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). 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)
  5. 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)
  6. While proximity of a church, school, or residence to a proposed location by itself may be adequate grounds for denial of a beer and wine permit, there is no minimum distance requirement. See S.C. Code Ann. § 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). While S.C. Code Ann. § 61-6-120(A) (Supp. 1997) provides that a business licensed to sell liquor must be over 300 feet from a church, school or playground within a municipality, there is no similar statute applicable to the sale of beer and wine
  7. 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 their testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).
  8. 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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Such unsupported allegations form an insufficient basis for denial of a permit. Id.
  9. The existence of another business in close proximity which is licensed to sell beer and wine is evidence of suitability of the proposed location. Taylor v. Lewis, 198 S.E.2d at 802 (1973).
  10. The issuance of the permit will not have an adverse impact upon the surrounding community.
  11. The proposed location is suitable for the sale of beer and wine.
  12. The applicant meets all requirements to hold of an off-premises beer and wine permit.
  13. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(B).


ORDER

IT IS THEREFORE ORDERED that Petitioner's application for an off-premises beer and wine permit for 2538 Two Notch Road, Columbia, South Carolina, is granted.

AND IT IS SO ORDERED.

_________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

October 23, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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