South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
William J. Keenan, Petroleum Developers, Inc., d/b/a Gaz Bah #1 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
William J. Keenan, Petroleum Developers, Inc., d/b/a Gaz Bah #1

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
98-ALJ-17-0523-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire For the Respondent: Arlene D. Hand, Esquire (Excused from appearing at the hearing)

Protestant: Pamela and Russell Ledford - Pro Se
 

ORDERS:

AMENDED FINAL ORDER AND DECISION

Pursuant to a Motion for Reconsideration filed in this tribunal on December 22, 1998, by Petitioner's Counsel, James H. Harrison, the Order in this matter previously issued on December 16, 1998 is hereby rescinded and the following Order substituted therefor. The Amended Order provides that Petitioner will be required to install a video surveillance camera to monitor the rear of the location at the check-out counter in lieu of having a separate employee on duty to monitor this area.

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 and Supp. 1997) and S.C. Code Ann. § 61-2-260 (Supp. 1997) upon filing of an application (AI-9035) by Petitioner, William J. Keenan, for renewal of an on-premises beer and wine permit for a location at 1501 Bluff Road, Columbia, South Carolina. Upon receipt of a written protest to the application, the South Carolina Department of Revenue (DOR) transmitted the case to the Administrative Law Judge Division for a hearing. The issue considered was the suitability of the business at the proposed location. The contested case hearing was conducted on December 8, 1998, at the Administrative Law Judge Division in Columbia, South Carolina. Testifying at the hearing in protest of the proposed location were Pamela and Russell Ledford. Petitioner William J. Keenan testified in support of the application. The South Carolina Department of Revenue was not represented at the hearing, having been excused from attending pursuant to its filed motion.

The Petitioner and the Protestants stipulated at the hearing to issuance of an off-premises beer and wine permit, rather than renewal of Petitioner's on-premises permit. Petitioner's amended application for an off-premises permit is granted with restrictions.

EXHIBITS

Certified copies of the documents forwarded to the Division from the Department are made a part of the record.

FINDINGS OF FACT

Having observed the witnesses at the hearing and reviewed the certified documents sent to the Division by the Department, and having closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I make the following Findings of Fact by a preponderance of the evidence:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties, including the Protestant.

3. The applicant is seeking an on-premises beer and wine permit for a location at 1501 Bluff Road, Columbia, South Carolina. However, the Petitioner and the Protestants stipulated at the hearing to issuance of an off-premises beer and wine permit.

4. The applicant is over twenty-one years of age.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in a newspaper of general circulation in the local area where the applicant proposes to engage in business.

6. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

7. The applicant has been a legal resident of South Carolina for over thirty days and has maintained his principal place of abode in South Carolina for over thirty days.

8. The applicant is of good moral character. He has no criminal record or history.

9. The location has been licensed to sell beer and wine on-premises since 1975 with no previous complaints or permit violations.

10. The location operates as a convenience store and caters to workers in the industrial park in which it is located. The surrounding area is primarily commercial in nature.

11. There are no churches, schools, or playgrounds within the immediate vicinity of the proposed location.

12. The hours of operation at the location are 6:00 a.m. to 10:00 p.m. Monday through Friday, 7:00 a.m. to 7:00 p.m. on Saturday, and closed on Sunday. The location employs two full-time employees and one part-time employee.

13. The location has recently remodeled and reopened in May 1998. The location now contains restroom facilities that are available to the public.

14. The location has glass windows on the front of the building which allow employees partial view of the property. Employees are required to police and inspect the interior and exterior of the location each day.

15. The Protestants, Pamela and Russell Ledford, own Refrigeration Specialties, a business which specializes in truck repair and transport refrigeration and employs nine people. Refrigeration Specialties operates from 8:00 a.m. to 5:00 p.m. Monday through Friday. The Protestants' business is located adjacent to Petitioner's location.

16. The Protestants voiced four main concerns: (1) litter from Petitioner's location on Protestant's property, (2) property damage to Protestant's property by Petitioner's customers, (3) instances of public urination, and (4) incidents of public drunkenness. The Protestants do not oppose the sale of beer and wine at the location; however, the Protestants do oppose the consumption of beer and wine on the premises.

17. The Petitioner and the Protestants stipulated at the hearing to the issuance of an off-premises beer and wine permit with restrictions.

CONCLUSIONS OF LAW

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

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. 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.

2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

5) The applicant is twenty-one years of age or older.

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. This item does not apply to locations licensed before April 21, 1986.

8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

3. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the 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).

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact (judge) in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5. It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

6. 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 located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence of other licensed locations in the immediate vicinity and the existence of students and small children in the area.

7. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). A license should be granted to a location that has been recently permitted absent some showing that the location is now less suitable than in the past. Id.

8. 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).

9. 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.

10. S.C. Code Ann. § 61-4-540 (Supp. 1997) states that upon a determination that an applicant meets the requisite qualifications and conditions, is a fit person, and the proposed place of business is a proper one, the department must issue the permit after payment of the fee as required by law.

11. Protestants have failed to make a sufficient evidentiary showing that the present location is unsuitable or that the issuance of an off-premises beer and wine permit with restrictions would affect adjoining property owners, encourage public drunkenness, or have an adverse impact on the community. The proposed location and the nature of the business are suitable and proper for issuance of an off-premises beer and wine permit with restrictions.

12. I conclude that the Petitioner has met his burden of proof in showing that he meets all of the statutory requirements for holding an off-premises beer and wine permit with restrictions at the location. I further conclude that the proposed location is a proper one for granting the permit, with the restrictions enumerated below.



ORDER

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

ORDERED that the application of William J. Keenan for an off-premises beer and wine permit at the location found at 1501 Bluff Road, Columbia, South Carolina, is granted.

IT IS FURTHER ORDERED that the South Carolina Department of Revenue shall issue the permit upon Petitioner's payment of the required fees and costs and upon Petitioner's signing an agreement with the South Carolina Department of Revenue to adhere to the following restrictions:

1. Petitioner must maintain proper lighting on the exterior of the proposed location. The lights must be on at sundown and remain on until closing.

2, Petitioner shall install a video surveillance camera to monitor the rear of the location. The monitor shall be readily visible to the employee at the checkout counter. Petitioner and/or his employees shall use the monitor to assist in preventing disturbances and public urination, minimizing loitering and excessive noise, and discouraging littering and property damage to adjoining locations.

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.

AND IT IS SO ORDERED.





______________________________________

Marvin F. Kittrell

Chief Judge

December 29, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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