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Administrative Law Court
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SC Administrative Law Court Decisions

Robert R. Wilkerson, Wilkerson Fuel Co., Inc., d/b/a Quick C Food Mart #108 vs. SCDOR

South Carolina Department of Revenue

Robert R. Wilkerson, Wilkerson Fuel Co., Inc., d/b/a Quick C Food Mart #108

South Carolina Department of Revenue

Wayne R. Covert, Jr., Esquire
For Petitioner

William R. Bauer, Esquire
For Protestants: John and Amy Herin

Pro se Protestants: Susan Dingman

Dr. James Buckland



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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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.


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.


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).


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.




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.

Brown Bldg.






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