SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997), S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997), and S.C. Code Ann. § 12-60-1320 (Supp. 1997), upon an application for an off-premises beer and wine permit for Tobacco World, 3227 Old Buncombe Road, Greenville, South Carolina, by Armond E. Head, Jr. filed with the South Carolina Department of Revenue ("DOR"). After notice to the parties, a hearing was held on December 15, 1998, at the Laurens County Courthouse to consider the suitability of the location for an off-premises beer and wine permit. Upon motion granted, DOR was excused from appearing at the hearing. Based on the evidence presented and the applicable law, the application is denied.

By a preponderance of the evidence, I find:

The Petitioner, Armond E. Head, Jr., seeks an off-premises beer and wine permit for Tobacco World located at 3227 Old Buncombe Road, Greenville, South Carolina, having filed an application with the South Carolina Department of Revenue on June 1, 1998.

Several members of the community filed a protest against the application because of the proximity of the location to a detoxification center and local schools and the location's history as a source of criminal activity when previously licensed to sell beer and wine.

Notice of the time, date, place, and subject matter of the hearing was given to the Petitioner, Protestants, and DOR.

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.

The proposed location was licensed to sell beer and wine for on-premises consumption in 1989. This location was issued a violation warning in 1990 for permitting possession of beer by a person under twenty-one years of age.

The proposed location operates as a convenience store and sells primarily beverages and snacks with a small line of groceries.

The proposed location's hours of operation are from 6:00 a.m. until 10:00 p.m., Monday through Saturday.

There are approximately twelve parking spaces at the proposed location.

The proposed location is in a mixed area of commercial and residential properties.

The nearest residence is approximately 300 feet from the proposed location.

Sans Souci Baptist Church is located approximately 1300 feet from the proposed location, and the Church of God is located approximately 700 feet from the proposed location.

Sans Souci Elementary School is located approximately 1 mile from the proposed location.

Children frequently walk from homes in the neighborhood, passing the proposed location, to Lakeview Middle School, located 0.6 mile from the proposed location.

A detoxification center is located approximately 250 yards from the proposed location and contains sixteen beds for patients voluntarily recovering from alcohol and drug abuse.

The area surrounding the proposed location has a history of crime problems and numerous traffic accidents and parking concerns.

The sale of beer and wine at the proposed location when previously licensed was a contributing factor to law-enforcement problems and traffic concerns at the location and the surrounding neighborhood.

The residents of the neighborhood and other concerned citizens have made efforts to revitalize and improve their community.

Petitioner is a legal resident of the United States.

Petitioner is over twenty-one years of age, is a resident of the State of South Carolina, and has maintained his principal residence in South Carolina for more than thirty days prior to the date of his application.

Petitioner currently holds a beer and wine permit for another location in Greenville County.

Petitioner has never been cited for violation of the alcoholic beverage control laws.

Petitioner has never had suspended or revoked any type of permit or license to sell alcoholic beverages.

Notice of the application appeared in The Greenville News, 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.

Petitioner was convicted in 1989 of an open container violation, and a charge of assault and battery against Petitioner is currently pending with the Greenville County Sheriff's Department.

The issuance of an off-premises beer and wine permit to Petitioner would have a detrimental impact upon the surrounding area, notwithstanding Petitioner's intention to operate a reputable establishment.

Because of the past history of the proposed location, the proximity of the proposed location to a detoxification center and local schools, and the community efforts to revitalize the area, the proposed location is unsuitable for issuance of an off-premises beer and wine permit.

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

The Administrative Law Judge Division is empowered to hear this contested case pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997), S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1997), and S.C. Code Ann. § 12-60-1320 (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. S.C. Code Ann. § 61-4-520 (Supp. 1997), includes the following requirements, among others, for the issuance of a beer and wine permit:

(1) The applicant . . . [is] 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.

4. Because no disposition has been made of Petitioner's pending assault and battery charge as of the date of this Order, it is given no weight in determining Petitioner's moral character.

5. Because Petitioner's 1989 open container offense is not a crime of moral turpitude, I find Petitioner to be of sufficient moral character to satisfy the requirement of S.C. Code Ann. § 61-4-520(1) (Supp. 1997). See State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990) ("A crime of moral turpitude is an act of baseness, vileness or depravity in the private and social duties which man owes to his fellow man or to society in general, contrary to the customary and accepted rule of right and duty between man."); 1989 Op. S.C. Att'y Gen. No. 89-89 at 237 (commission of a crime involving moral turpitude implies the absence of good moral character).

6. State law authorizes the administrative law judge, as the trier of fact, to determine the fitness or suitability of a proposed 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).

7. 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).

8. In considering whether a proposed location is suitable, the finder of fact may properly consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9. 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 found. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

10. "[P]roximity of a location to a church, school or residence is a proper ground, by itself, on which the [finder of fact] may find the location to be unsuitable and deny a permit for the sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991).

11. The denial of a permit to sell beer and wine is appropriate when the proximity of the proposed outlet would aggravate problems related to consumption of alcohol in public areas. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); cf., Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (denial of beer and wine permit upheld where ABC Commission concluded that congregations of people on an applicant's property would be worsened by making cold beer immediately available); Roche v. South Carolina ABC Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975) (denial of a grocery-store operator's application for a retail permit to sell chilled beer and wine for off-premises consumption was supported by evidence that law enforcement officers in area had constant problems with public intoxication and that the neighborhood was predominantly residential in nature).

12. The proposed business activity is not proper for the proposed location considering the impact of the sale and consumption of beer upon criminal activity and law enforcement problems in the area. See Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

13. The proposed location is unsuitable for the sale of beer and wine because of the proximity of the location to a detoxification center, local schools, and residential neighborhoods.

14. The proposed business activity is not proper for the proposed location considering the location's history of attracting undesirable and criminal activity when licensed to sell beer and wine.

15. The issuance of an off-premises beer and wine permit would have an adverse impact on the community.

16. The proposed location is unsuitable for issuance of an off-premises beer and wine permit.

17. 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(C).

IT IS THEREFORE ORDERED that Petitioner Armond E. Head, Jr.'s application for an off-premises beer and wine permit for Tobacco World located at 3227 Old Buncombe Road, Greenville, South Carolina is denied.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

January 26, 1999

Columbia, South Carolina