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:
Shelton Food Stores, Inc., d/b/a Shelton's vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Shelton Food Stores, Inc., d/b/a Shelton's

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
99-ALJ-17-0369-CCb

APPEARANCES:
J. Martin Harvey, Esquire, for Petitioner

Arlene D. Hand, Esquire for Respondent (Excused from attending the hearing)

Hyo Shih Kim, Protestant, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE



This matter is before the South Carolina Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Code Ann. Regs. 7-90 (1976) upon the request of the Petitioner for an off-premises beer & wine permit. The proposed location is known as Shelton's, located at 105 West Lady Street, Swansea, South Carolina 29160.

The South Carolina Department of Revenue ("Department") filed a Motion to be Excused, stating that the Department would have granted the permit but for the protest of the application. The Department's Motion was granted by my Order dated September 10, 1999.

A hearing was held before the undersigned at the Division, 1205 Pendleton Street, Suite 224, Columbia, South Carolina on November 9, 1999. Notice of the time, date, location, and nature of the hearing was timely sent to all parties, as well as to the Protestant.

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, 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 parties, as well as the Protestant, in a timely manner.

2. The Division has personal and subject matter jurisdiction in this matter.

3. The Petitioner seeks an off-premises beer and wine permit for the business establishment known as Shelton's, located at 105 West Lady Street, Swansea, South Carolina 29160.

4. Shelton's is a convenience store that sells miscellaneous grocery items and has an on- site food preparation area.

5. Joyce R. Saylor filed a Protest on behalf of the Swansea United Methodist Church. The Protestant did not file a Petition to Intervene.

6. Thrifty Way's hours of operation are 5:00 A.M.-- 12:00 midnight, Monday through Sunday.

7. The Department filed a Motion to be Excused from attending the hearing on July 23, 1999, which was subsequently granted by my Order signed September 20, 1999.

8. In its Motion, the Department indicated that the Petitioner met all statutory requirements relative to the application of an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976).

9. By virtue of granting the Department's Motion to be Excused from attending the hearing, the Division adopts the Department's finding that Petitioner met the statutory requirements relative to the application of an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Code Ann. Regs. 7-90 (1976).

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdiction to the South Carolina Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-6-1825 (Supp. 1998) grants to the South Carolina Administrative Law Judge Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976) sets forth the requirements for issuance of beer and wine permits.

4. 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 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).

5. Any evidence adverse to a location may by 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 any 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.

6. 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 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).

7. 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 Protestant concerning a possible detriment to their community is conjectural and without any specific factual support.

8. The major complaints of the Protestant 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. If the business at this location is operated properly, there will be no negative impact upon the community.



9. Permits and licenses issued by the State for sale of liquor, beer and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

10. Standards for judging the suitability of a proposed location for the sale of beer, wine or liquor are not determined by a local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, regulated by the State.

11. I conclude that the Petitioner's burden of proof has been met by virtue of meeting all of the statutory requirements for granting the off-premises beer and wine permit at the proposed location. I further conclude that the proposed location is proper for granting the permit.ORDER

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

ORDERED that the South Carolina Department of Revenue shall grant the off-premises beer and wine permit to Shelton Food Stores, Inc., d/b/a Shelton's, located at 105 West Lady Street, Swansea, South Carolina 29160 upon payment of the appropriate fees.

AND IT IS SO ORDERED.







____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



November 15, 1999.

Columbia, South Carolina.


Brown Bldg.

 

 

 

 

 

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