ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and
S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1998) for a hearing on the application of Petitioner
Robert R. Wilkerson. Petitioner seeks the renewal of an off-premises beer and wine permit for a
convenience store located at 927 Elmwood Avenue, Columbia, South Carolina.
After timely notice to the parties and protestants, a hearing was held on March 9, 1999, at
the Administrative Law Judge Division, Columbia, South Carolina. John Herin, protestant of
record, did move to intervene as a party; however, his motion was adjudged as untimely. (See
Order of this tribunal bearing same caption filed March 3, 1999). Pursuant to its Motion to Be
Excused, the Department was excused from appearing at the hearing and would have granted the
permit but for the protests. The issues considered at the hearing were: (1) Petitioner's eligibility
to hold a beer and wine permit; (2) the suitability of the proposed business location; and, (3) the
nature of the proposed business activity. Petitioner's off-premises beer and wine permit renewal
is hereby granted.
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FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of the evidence, I
make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks the renewal of an off-premises beer and wine permit for Quick C
Food Mart #108, which is located on a major six-lane thoroughfare leading into and out of
downtown Columbia, South Carolina, at 927 Elmwood Avenue. The business is situated in a
highly commercial area which borders the Elmwood Park residential community.
2. Petitioner's application to the South Carolina Department of Revenue is made a
part of the record by reference.
3. No church, school or playground is within close proximity to the proposed
location.
4. A number of other businesses are located within close proximity to the proposed
location, including two other convenience stores which sell beer and wine.
5. The proposed location has been licensed to sell beer and wine since 1995.
6. Petitioner operates and manages the proposed location as a convenience store,
which operates twenty-four hours a day.
7. The proposed location is owned by its parent corporation, Wilkerson Fuel Co.,
Inc.
8. The State Law Enforcement Division completed a criminal background
investigation of Petitioner Robert R. Wilkerson. The SLED report did not reveal any criminal
violations. Further, there is nothing in the record before this tribunal to indicate that Petitioner
has engaged in acts or conduct that imply the absence of good moral character.
9. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained his principal residence in the State for at least thirty (30) days prior
to the date of making application for renewal of an off-premises beer and wine permit.
10. Petitioner has never had a beer and wine permit or other license for the sale or
consumption of alcoholic beverages suspended or revoked.
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11. The Department did not oppose Petitioner's application.
12. Several protestants testified in opposition to the renewal of the permit in question.
As justification for denial of the renewal of Petitioner's permit, the protestants contend that
vagrants purchase beer from Petitioner's business and then litter their properties with beer bottles
and cans. Protestants also state that vagrants urinate and defecate on their properties. Protestants
claim that as a result of the operation of the convenience store, excessive noise is generated
which disturbs them.
STIPULATIONS
In order to promote favorable consideration of his application and to address concerns of
the protestants, Petitioner voluntarily stipulated to placing the following restrictions on his
permit(1).
Petitioner agrees:
1. That the Management would increase area clean-up and trash
patrols from twice a day to three times daily.
2. That the fencing which blocks access to the access way
between the building and the brick privacy wall will be
locked at all times except when employees of Quick C
are utilizing the access way.
3. That the "cut through" area behind the car wash is currently
fenced off as high as City Inspectors will approve. Quick C is
willing to increase the height of the fence if the City of Columbia
would allow a variance to do so; and that Petitioner will make
application for such a variance.
4. That the ownership and management of Quick C will continue
to work with the residents of the surrounding area to meet any
concerns which arise.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 61-2-260 (Supp. 1998) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-4-520 (Supp. 1998) establishes the criteria for the issuance
of a beer and wine permit.
3. Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge Division, as the trier of fact, in determining the fitness or
suitability of an applicant's proposed business location. Fast Stops, Inc. v. Ingram, 276 S.C. 593,
281 S.E.2d 181 (1981); Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App.
1984).
4. Determination of suitability of a location is not based on geography alone. 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); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308
(1981).
5. In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C.
504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
6. Petitioner meets all of the statutory criteria enacted by the South Carolina General
Assembly for the issuance of an off-premises beer and wine permit. In making a decision in this
matter, this tribunal is constrained by the record before it and the applicable statutory and case
law. The objections raised by the protestants must be considered with all the other factors related
to the nature and operation of the convenience store. This convenience store is situated in a
highly commercial area with similar businesses. Perhaps if this store and others like it were not
proximately located to protestants, they would not experience the problems described herein.
However, in requesting this tribunal to deny Petitioner's renewal application, protestants are in
essence asking this tribunal to effectuate zoning, the ultimate purpose of which is to confine
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certain classes of buildings and uses to certain localities. 101A C.J.S. Zoning and Land Planning
§ 101 at 366 (1979). Such authority is vested solely in protestants' local government.
Nonetheless, Petitioner agreed to certain restrictions which will likely alleviate some of
the concerns raised by protestants. As a result, Petitioner is subject to compliance with these
restrictions for continued licensure.
An alcohol permit or license is neither a contract nor a property right. It is a "mere
permit, issued or granted in the exercise of the police power of the state to do what otherwise
would be unlawful to do; and to be enjoyed so long as the restrictions and conditions governing
their continuances are complied with." Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22
(1943). As such, the stipulations submitted by Petitioner will be incorporated into the basic
requirements for the enjoyment and privilege of obtaining and retaining the beer and wine
permit. 23 S.C. Code Ann. Regs. 7-88 (1976).
ORDER
Based upon the Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the application for renewal of Petitioner's off-premises
beer and wine permit is granted with restrictions.
IT IS FURTHER ORDERED that the Department shall incorporate the stipulations
contained herein as restrictions upon Petitioner's permit.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
April 2, 1999
Columbia, South Carolina
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1. See letter from Petitioner dated March 15, 1999, which is incorporated herein by reference. |