SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1997) and S.C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. Gladys L. Harris ("Petitioner" or "Applicant") seeks a retail liquor license for the F-N-J Package Store located at 1411 South Piedmont Highway, Piedmont, Greenville County, South Carolina, and an off-premise beer and wine permit for the FNJ One Stop (convenience store) located at 1411 A South Piedmont Highway, Piedmont, Greenville County, South Carolina. The South Carolina Department of Revenue ("Department") made Motions to be Excused from appearing at the hearings in each case, stating that but for filed protests of the applications, it would have issued both the license and the permit. The Department's Motions were granted by Orders dated September 1, 1998 and October 28, 1998.

Subsequent to the consolidation of the cases, a hearing was held by the undersigned on October 7, 1998 at the offices of the Administrative Law Judge Division, Columbia, South Carolina, with regard to the issuance or denial of the request for the retail liquor license at its proposed location. Later, the two cases were consolidated by Order dated November 16, 1998. A hearing was then held by the undersigned at the Spartanburg County Courthouse, Spartanburg County, South Carolina on January 15, 1999 to consider the request for the off-premise beer and wine permit and take any other evidence which might be offered to the court in the retail liquor license application case.

By stipulation of the parties and the protestants, all evidence presented at both hearings will be considered by the court in making its decision. Further, this order will be the Final Order and Decision in each case.

After carefully weighing all the evidence, this court finds that both the retail liquor license and the off-premise beer and wine permit should be granted.

FINDINGS OF FACT

Having carefully observed and considered the credibility of the witnesses presented at the hearing, and having reviewed all evidence and exhibits, I make the following findings of fact by a preponderance of evidence, after taking into consideration the burden of persuasion by the Petitioner and Protestants:

1. This Division has personal and subject matter jurisdiction.

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

3. Petitioner seeks a retail liquor license for the F-N-J Package Store located at 1411 South Piedmont Highway, Piedmont, Greenville County, South Carolina. It will be a retail liquor store. Petitioner also seeks an off-premise beer and wine permit for the FNJ One Stop located at 1411 A South Piedmont Highway, Piedmont, Greenville County, South Carolina. This will be a convenience store. Both stores are located in one building but are separate from each other and have separate entrances.

4. Petitioner is a resident and citizen of the State of South Carolina and has lived in this state all her life. She was born at Pelzer, South Carolina on November 4, 1966 and is thirty two years of age.

5. Petitioner and her husband, Joey Harris purchased this proposed location in March 1998. Since that date they have been renovating the building, including but not limited to painting, re-roofing, installing windows and installing interior and exterior lights. They own approximately three acres of land at the location which consists of approximately one-quarter mile of road frontage.

6. Petitioner is of good moral character and repute. She has no criminal record or reputation.

7. Petitioner has not had a beer and wine permit or liquor license revoked in the last five years.

8. Petitioner will operate the proposed business with help from her husband, Joey Harris.

9. Notice of the applications were lawfully posted at each location and in the Greenville News, a newspaper of general circulation in that area.

10. The locations are in the opinion of the Department a proper place and location for the issuance of the off-premise beer and wine permit and the retail liquor store license.

11. Various Protestants objected both to the issuance of the beer and wine permit and the retail liquor license to the Petitioner for a number of reasons, some of which are as follows:

a) Granting the license and the permit would compound the already heavy traffic flow on highway 20 (Piedmont Highway) in the general area and further, the movement of vehicles into and from the location's parking areas in an area where there is much obscurement due to heavy foliage from trees and vegetation would exacerbate the traffic congestion problem;

b) Granting the retail liquor license and the beer and wine permit to Petitioner would make available for purchase alcoholic beverages to patrons at the locations whocould then consume them and thereafter exhibit inappropriate behavior both at the location and at or near Protestants' or nearby residents' homes, many of whom are elderly and are in fear for their safety;

c) Granting the license and permit could have a negative effect on the safety of children who live in the general vicinity through inappropriate or negligent driving by its patrons or through the occurrence of inappropriate behavior in their sight;

d) There would be ineffective assistance from police officers or sheriff's deputies to assist in any situation which might arise due to the distance between the location and law enforcement offices in Greenville County;

e) There would be great potential for littering at the location and in the general area by patrons who purchase alcoholic beverages at the location;

f) There would be the potential for patrons loitering at the location and in the vicinity of nearby residences.

12. The location is in a rural area. There is a railroad track directly behind the proposed location which is some seven feet lower in elevation than the proposed location. Across the railroad track and directly behind the location is a dairy and the residences of protestants Mrs. Rosalee Davis and her son, Wilton Davis.

13. There are churches, schools, and a day care in the general vicinity of the location, but none are within 300 feet. The closest church, Rehobeth Baptist, is located on Rehobeth Road about 1.3 miles in distance from the location. A day care center is some short distance from the location in the direction of the Saluda River. Owners of residences in the general locale who protest the granting of the license and permit are: Wilton Davis, Mrs. Rosalee Davis, Mrs. Mamie B. Palmer, Mrs. Kathy Mohrmann and Ben Allen. Some of the local residents are elderly and some are young families with small children.

14. The nearest residence is approximately 250 feet away from the proposed location.

15. The closest retail liquor store is approximately 2 miles away, located in the Town of Pelzer.

16. The proposed hours of operation at the location will be from 9:00 a.m. to 7:00 p.m., Monday through Saturday. Neither location will be open on Sunday.

17. The location was previously permitted for the sale and consumption of alcoholic beverages, under the management of a previous owner. During that time, a number of incidents arose which caused local residents to fear for their health and safety.

18. The proposed location is suitable for the retail sale of liquor and the sale of beer and wine for off-premise consumption.

CONCLUSIONS OF LAW

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. 1997) 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. 1997), titled "Contested case hearings," grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. §§ 61-6-110, et seq. (Supp. 1997) sets forth the requirements for determining eligibility for a retail liquor license. The applicant: (1) must be twenty-one years of age; (2) must be a legal resident of the United States; (3) must be a resident of South Carolina; (4) must have maintained his principal place of abode in South Carolina for at least thirty days prior to the date of the application; (5) must be of good repute, and; (6) must not have had revoked within five years preceding the filing of the application a license regulating the manufacture or sale of alcoholic liquors.

4. S.C. Code Ann. § 61-6-120 (Supp. 1997), addressing the application for a liquor license and the proximity of the proposed location to a church, school or playground, 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....

5. 23 S.C. Code Ann. Regs. 7-11 (1976) provides the method for measuring the distances referred to in § 61-6-120. No schools, churches or playgrounds are within the proscribed proximity to render the proposed location unsuitable for the retail liquor license.

6. S.C. Code Ann. § 61-2-160 (Supp. 1997) provides that no license or permit may be issued, renewed, or transferred unless the department and the Internal Revenue Service determine that the applicant does not owe the state or federal government delinquent taxes, penalties, or interest.

7. 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:

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.

8. 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).

9. 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). As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of an applicant 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).

10. 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.

11. 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 operations of a 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).

12. Any evidence adverse to a location may be considered. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school or residence is a proper ground by itself on which the location may be found to be unsuitable and the 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 general 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.

13. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted 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).

14. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license 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, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the Protestants concerning a possible detriment to their community is conjectural and without any specific factual support. There is no evidence of law enforcement problems in the general area of the proposed location, nor is there evidence that small children play in its immediate vicinity. All the general statutory requirements have been met. Further, it appears that the location has been materially improved and the entry and exit of automobiles from the parking lot will not exacerbate the traffic flow in front of the location. The history of problems when a club was operational at the location is not considered detrimental to the issuance of this permit and license. The problems occurred some time ago, alcoholic beverages were sold for on-premise consumption and the location was managed by a former owner. There is no evidence that similar events would occur under the ownership of applicant.

The major complaints of the protestants are based on conjecture and conclusions which this court concludes are without basis. The court does not see any evidence that law enforcement could not provide sufficient protection at the location and to residents in the general vicinity; there is no evidence of any safety problems. Further, no objection to the permit and license requests were made by the Greenville County Sheriff's Office. If the businesses at this location are operated properly, there will be no negative impact upon the community.

15. 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.

16. Pursuant to the provisions of S.C. Code Ann. § 61-4-540 (Supp. 1997), having found that the applicant has met her burden of proof in showing that she meets all the requisite qualifications and conditions, is a fit person, and the proposed location is a proper one, I conclude that the department must issue the off-premise beer and wine permit subject to applicant signing an agreement with the department to be bound by the restrictions enumerated as follows:

1. Applicant must maintain proper lighting on the exterior of the proposed location and within the entire parking lot area.

2. Applicant must strictly prohibit loitering inside and outside the proposed location and must patrol the parking areas, if necessary, to ensure compliance.

17. Further, this court concludes that the Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location and the department must issue the retail liquor license upon applicant signing the agreement outlined in conclusion of law # 16.

ORDER

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

ORDERED that a retail liquor license must be issued by the Department to Gladys L. Harris, d/b/a F-N-J Package Store for the location at 1411 South Piedmont Highway, Piedmont, Greenville County, South Carolina upon payment of the required fees and costs, and it is further

ORDERED that an off-premise beer and wine permit must be issued by the Department to Gladys L. Harris, d/b/a FNJ One Stop for the location at 1411 A South Piedmont Highway, Piedmont, Greenville County, South Carolina upon payment of the required fees and costs, and it is further

ORDERED that the permit and license shall only be issued by the Department upon the applicant signing an agreement with the Department of Revenue to adhere to the following restrictions:

1. Applicant must maintain proper lighting on the exterior of the proposed location and within the entire parking lot area.

2. Applicant must strictly prohibit loitering inside and outside the proposed location and must patrol the parking areas, if necessary, to ensure compliance.

AND IT IS SO ORDERED.

Chief Judge

March 1, 1999

Columbia, South Carolina