ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 1998) and
S.C. Code Ann. §§ 1-23-310 et. seq. (1986 and Supp. 1998) for a contested case hearing. The Petitioner, Robert J. Meyers,
seeks an on-premise beer and wine permit for the Mini Mart. Respondent Department of Revenue (Department) made a
Motion to be Excused which was granted by my Order dated March 17, 1999. Furthermore, on March 17, 1999, I appointed
Rebekah E. Bailey as spokesperson for a group of Protestants opposed to the issuance of the on-premise beer and wine
permit. Thereafter, Respondent Rebekah E. Bailey made a Motion to Intervene which I granted on June 17, 1999. A hearing
was held before me on July 13, 1999, at the Administrative Law Judge Division.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of persuasion by the Petitioner, the Protestants, and the Respondent, I make the following Findings
of Fact by a preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestants, and the
Respondents.
2. The Petitioner seeks an on-premise beer and wine permit for the Mini Mart located at 6101 Monticello Road in Columbia,
South Carolina. The Mini Mart currently holds on-premise beer and wine permit # 855516.
3. The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1998) concerning the residency and age
of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the past
two years. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
4. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit. Additionally,
there was no evidence offered to establish that the Petitioner's business did not have a reputation for peace and good order.
5. The Mini Mart is not within 1.5 miles of a church, school or playground. Therefore, the proposed location is not
unreasonably close to any church, school or playground.
6. The Petitioner stated that the hours of operation at this location will be:
(a) 7:00 a.m. until 9:30 p.m. on Mondays, Tuesdays, Wednesdays, Thursdays, Fridays, and Saturdays; and
(b) Closed on Sundays.
7. The Mini Mart is 2/10 of a mile from the nearest residence, although the occupants of that residence were not among the
Protestants. The closest testifying Protestant lives approximately 7/10 of a mile from the location. Several other
establishments in the area operate with on-premise beer and wine licenses. One of the locations, Culler's, is approximately
150 yards from the Mini Mart and is adjacent to a liquor store. Furthermore, two nearby locations possess off-premise beer
and wine permits.
8. The Respondent and Protestants contend that the Petitioner's location is not suitable because the Mini Mart increases
traffic flow through nearby neighborhoods and impedes safe driving due to the presence of patron vehicles parked along
nearby roads in a hazardous manner. The Mini Mart is located at the intersection of Monticello Road and Winyah Road in
Columbia, South Carolina. A portion of Winyah Road which runs from Monticello Road operates as one entrance to the
Respondent's and Protestants' residential neighborhood. Currently, the Mini Mart has between eight to ten marked parking
spaces in the parking lot. Patrons of the Mini Mart often park their vehicles on Winyah Road at the entrance to the Mini
Mart's parking lot. Though the Petitioner expects the number of parking places to increase once the underground storage
tanks are removed and the parking lot is filled and paved again, his parking area is limited at this time. Therefore, his location
is presenting a traffic concern. However, the stipulation set forth below rectifies that problem.
9. The Respondent and Protestants also contend that the Petitioner's location is not suitable because it fosters loitering and
potential criminal activity. They presumed that occasional police activity around the Mini Mart indicated disturbances
related to alcohol consumption by patrons and Petitioner's lax enforcement of the loitering prohibition. Furthermore, a
Protestant also complained of one incident involving public urination by a male standing along the exterior side wall of the
Mini Mart. No police report of that incident was presented as evidence. However, the Protestant's fears are simply not
supported by any specific evidence of problems resulting from loitering near the location or along Winyah Road.
Furthermore, the lone incident of public urination occurred before Petitioner obtained his beer and wine permit for the
location.
10. The Respondent and Protestants also expressed concerns over increased traffic safety along Winyah Road because of the
possibility that intoxicated drivers associated with the Mini Mart could endanger the residents in the area. However, the
lawful sale of beer, wine and alcohol has been approved by our General Assembly. With that sale comes the inherent danger
that individuals may drive intoxicated. If this location was denied a permit and license because of a general concern of
intoxicated driving by the Petitioner's patrons without any direct evidence supporting those fears, then that logic must be
applicable in all license and permit applications. Since the above unlawful act could occur as the result of virtually every sale
of beer, wine or alcohol, no license or permit would ever be granted in South Carolina.
11. The Respondent's and Protestants' arguments appear to be based on a sincere concern for their community. However,
there is simply no direct evidence to indicate that the proposed location, as approved, will be a source of any law
enforcement or safety problems in the area. Nor is there sufficient evidence to find that the well-being of the surrounding
vicinity would be jeopardized by the issuance of the license and permit with the restrictions set forth below.
STIPULATIONS
The Petitioner specified at the hearing that he would abide by the following stipulations if granted a permit and license:
1. The Petitioner will limit all parking to the parking lot and shall not permit parking along the shoulder of Monticello Road
or Winyah Road.
2. The Petitioner will close the access from Winyah Road into the Mini Mart parking lot, thereby restricting access to his
parking lot through the entrance on Monticello Road.
3. The Petitioner shall erect a sign in his parking lot, visible from Winyah Road, indicating that no customers may park
outside of the parking lot and specifically may not park along the shoulder of Winyah Road.
4. The Petitioner will not permit loitering in the parking lot or around the location.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdiction to the Administrative Law Judge Division to hear contested
cases under the Administrative Procedure Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the Administrative Law Judge Division the responsibilities to determine
contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 1998) sets forth the requirements for the issuance of an on-premise beer and wine
permit.
4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the
fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the Petitioner and
the proposed business location for a license or permit using broad, but not unbridled, discretion. Byers v. South Carolina
ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984).
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 operations of the 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).
7. Permits and licenses issued by this state for the sale of 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 Commission, if accepted by the Commission, will be
incorporated into the basic requirements for the enjoyment and privilege or 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.
8. Without sufficient evidence of an adverse impact on the community, the application must 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).
Furthermore, but for the Protestants' objections to the suitability of the location, the Department of Revenue would have
issued the permit to the Petitioner.
9. The Petitioner meets the statutory requirements for holding a beer and wine permit at the proposed location with the
above stipulations and the following restrictions.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit be granted upon the Petitioner signing a written
Agreement with the South Carolina Department of Revenue to adhere strictly to the above stipulations.
IT IS FURTHER ORDERED that a violation of any of the above stipulations be considered a violation against the permit
and license and may result in a fine, suspension, or revocation.
IT IS FURTHER ORDERED that the Department of Revenue issue a beer and wine permit upon payment of the required
costs by the Petitioner.
AND IT IS SO ORDERED.
________________________________
Ralph King Anderson, III
Administrative Law Judge
September 20, 1999
Columbia, South Carolina |
