SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55, et seq. (Supp. 1998), § 61-2-90 (Supp. 1998) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 1998) for a contested case hearing. Albert Lawrence Garabedian ("Petitioner" or "Applicant"), d/b/a Pit Stop seeks an off-premise beer and wine permit (AI # 127916) for a convenience store located at 430 Tigerville Road, Greenville County, Travelers Rest, South Carolina ("location").

A hearing was held on January 7, 2000 at the Greenville County Courthouse, Greenville, South Carolina, to consider the request for the permit and take any evidence which might be offered to the court by the parties and the protestants. The issue considered was the suitability of the business at the proposed location.

At the start of the hearing, one protestant, Mrs. Kelly Clark, moved the court to intervene in the action and to be made a party. Without objection, Mrs. Kelly Clark was made a party to the case. There were a goodly number of individuals in the courtroom who were there to protest the grant of the permit. However, the following, together with Mrs. Clark, were agreed by all to serve as their spokesmen and to testify in opposition to the issuance of the permit: Rev. Roger Plemmons, Rep. Harry Cato, Mr. Mike Burns, Rev. John Dill, Mrs. Judy Styles, and Mr. R. H. Patterson.

The South Carolina Department of Revenue ("Department") was represented at the hearing and was also opposed to the grant of the permit.

At the hearing, Petitioner requested to amend his application request for an on-premise beer and wine permit to an off-premise beer and wine permit. Without objection, the request was granted.

The application by the Petitioner is denied.

EXHIBITS

Without objection, the certified portions of the Department's file sent to and received by the Administrative Law Judge Division were made a part of the record in this case. Petitioner placed into evidence a drawing of the location and proffered eleven photographs of other locations. Respondents placed into evidence eight exhibits, one of which was a video which was played during the hearing and reviewed by the court together with all in attendance.

FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties, including the protestants.

3. The applicant is seeking an off-premise beer and wine permit for a convenience store located at 430 Tigerville Road, Greenville County, Travelers Rest, South Carolina. Tigerville Road consists of an eighteen foot right of way owned by the state of South Carolina.

4. The applicant was born on June 1, 1970 and was 29 years of age at the time of the hearing.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Travelers Rest Monitor, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

6. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

7. The applicant has been a legal resident of South Carolina for over thirty days and has maintained his principal place of abode in South Carolina for over thirty days. He lives at 202 Pinemeadow Drive, Travelers Rest, South Carolina which is approximately 5-10 miles in distance from the location or some ten minutes in driving time.

8. The applicant has never had a beer and wine permit or any other alcoholic beverage license/permit issued to him revoked.

9. The applicant is of good moral character. He is gainfully employed full-time with the Pepsi Bottling Company in Greenville, South Carolina where he works approximately 60 hours weekly. He has worked for Pepsi for four years.

10. Applicant entered into a Partnership Agreement with Jack L. Smith, Jr. on April 1, 1999. Appellant and Mr. Smith each own 50% of the business. The purpose of the business venture was to operate a convenience store at 430 Tigerville Road, Travelers Rest, South Carolina. The partnership was to commence business on April 1, 1999. The partners have a "Pit Stop" franchise for the location.

11. Jack L. Smith, Jr., is the area manager for the Pepsi Bottling Company in Greenville, South Carolina.

12. Applicant and his partner leased the location from Matt Ellenburg.

13. Applicant and his partner have cleaned up the building, painting it on both the exterior and interior and have made it much more attractive than it was prior to the lease. They commenced operation of a convenience store in April, 1999 and sell soft drinks, groceries, snacks and hot dogs. There are no gas pumps at the location.

14. The hours of operation at the location are from 7:00 a.m. to 9:00 p.m. Monday through Saturday each week.

15. Petitioner has hired a manager, Ms. Teresa Harris, to manage the convenience store. She works primarily on the first shift from 7:00 a.m. to 2:00 or 3:00 p.m. daily. It is her responsibility to train all employees. There are also two other employees at the location.

16. A Greenville County Deputy Sheriff stops by the location daily and cleans up the grounds outside.

17. Since the opening of the Pit Stop, there have been no incident reports made concerning the location.

18. The physical building or structure at the location has been there for approximately 50 years. There is a paved parking area at the location. However, the parking area is small, both in its front area and that part alongside Enoree Road. The property is located at the intersection of Tigerville Road and Enoree Road.

19. There are presently three video poker machines inside the location which are owned by Tim's Amusement Company. Petitioner and Tim's Amusement Company split the profits from the machines equally.

20. There is no jukebox nor are there any pool tables at the location.

21. Petitioner has a policy at the store requiring his employees to ask almost everyone who wishes to purchase cigarettes for identification to determine their age. Loitering at the location is not tolerated.

22. One of the part-time employees at the location works full-time at another convenience store where she sells beer and wine for off-premise consumption. There have been no violations made against her by the Department for selling beer or wine to a person under the age of 21 years.

23. The location is in a rural area which is almost totally residential. Many elderly people and some thirty children live in the immediate vicinity of the location. It is a family-oriented community. Almost all the homes in the community are owned by their residents. 24. Mrs. Kelly Clark and her husband purchased the house immediately adjacent to the location some four years ago. They live in it and make it their home. Mrs. Clark cares for a small three year old girl one to three days per week in her home. When the Clarks purchased their home, the location was occupied as a gift shop and tanning shop.

25. A video taken by Mrs. Clark in part at 9:00 a.m. on January 6, 2000 and in part at 2:40 pm. on January 6, 2000, shows the locale along Tigerville Road and along Enoree Road

in the general vicinity of the location. From the video it appears that Tigerville Road is heavily traveled.

26. Both elementary and middle school buses pass along these two county highways, stopping periodically to accept and drop off children.

27. During the month of October 1999, an accident occured at the intersection of Tigerville and Enoree Roads. One of the vehicles involved in the accident ended up in the yard of Mrs. Styles, a protestant and the owner of the house and property directly across the road from the location.

28. There has never been a beer, wine or liquor license or permit of any kind issued to any individual or business at the location.

29. Rev. John Dill is the pastor of Enoree Baptist Church where he has served in that capacity for the last 14 years. He and his wife reared their children in the community. The Enoree Baptist Church is located approximately one half mile from the location on Tigerville Road. Rev. Dill's concern is that the sale of beer and wine for off-premise consumption will increase traffic at the location and create a traffic and parking problem which will in turn create a danger to the travelling public. Further, he is concerned about the effects in the community of the consumption of alcohol purchased at the location.

30. There are approximately nine state-licensed outlets for the sale of beer and wine within 2 ½ to 3 miles of the location.

31. Rep. Harry Cato resides within 2 miles of the location. He has two children, ages 14 and 10. He is concerned about the traffic in the general location, the lack of zoning and the rights of local citizens to protect themselves from neighbors they do not want in their neighborhood.

32. Mrs. Judy Styles has lived in her home directly across Tigerville Road from the Pit Stop for the last 25 years. She observes daily the public school bus stopping near her home. When the automobile accident occured in October 1999, the fence in her front yard was damaged. She has observed frequent potential automobile accidents at the intersection. Her concern is automobiles pulling in and out of the location onto highways already heavily travelled.

33. Rev. Roger Plemmons has been the pastor of Clearview Baptist Church for more than five years. He lives in Travelers Rest. His congregation has twelve families who live within ½ mile of the location. His concerns are about the "social ills" which might come from the sellingof beer and wine at the location. He also drives through the intersection 1 to 5 times each week and finds it difficult, particularly at night, to turn onto Tigerville Road from Enoree Road because of the heavy traffic.

34. Mike Bowers, a resident of this community since 1959, is a trustee and deacon at the Enoree Baptist Church. He drives through the intersection of Tigerville and Enoree Roads multiple times daily. He states that the traffic in that area is increasing.

35. Generally, the concerns of the ministers and the protestants were: first, that the general locale is residential and is a family oriented community where many elderly and children live and more are coming in, and second, that there will be an increase in traffic problems generated from traffic at the convenience store which will create a dangerous situation in the community.

36. I find that the location is not suitable for the sale of beer and wine for off-premise consumption due to its location in a residential community and to the danger from increased traffic and hazardous conditions with vehicles driving into and leaving the location onto the highways.

CONCLUSIONS OF LAW

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

1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. S.C. Code Ann. § 61-4-520 (Supp. 1998), which sets forth the requirements for the issuance of a beer and wine permit, provides as follows:

No permit authorizing the sale of beer or wine may be issued unless:

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.

3. 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).

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine, using broad but not unbridled discretion. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5. 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.

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 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).Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a 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 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.

7. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. Without sufficient evidence of an adverse impact on the community, the application must not 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. 48 C.J.S. Intoxicating Liquors § 119 (1981).

9. S. C. Code § 61-4-525 (Supp. 1998) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five miles of the location for which a beer and wine permit is requested, may protest the issuance or renewal of the permit if he files a written protest.

10. S.C. Code Ann. § 61-6-120 (Supp. 1998) provides that the Department shall not grant or issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions. Even so, the proximity of churches, schools, parks or playgrounds to a proposed location may be considered by the judge in determining whether a beer or wine permit should be issued.

11. 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).

12. In this instance there was specific and credible testimony showing that the granting of a permit to the applicant would have a detrimental impact on the community, and could place undue burdens on local law enforcement. Factors which weigh in favor of denying the issuance of the permit are:

(a). The location is situate at the intersection of two heavily travelled highways in Greenville County, South Carolina.

(b). There have been reported accidents at this location within the last few months and numerous incidents of potential accidents.

(c). The convenience store is located in a rural, residential area. There are almost no business establishments in the general area. There is a church within ½ mile of the location.

(d). Numerous families, including many with children and elderly persons, live in the neighborhood surrounding the convenience store.

(e) No prior owner or lessee of the location has ever had a beer, wine or alcoholic beverage permit or license granted or issued for that location.

(f) There is very little parking along the front and side of the convenience store building.

(g) It is difficult for one operating a vehicle on Enoree Road to exit onto Tigerville Road at the present time. The addition of customers entering and exiting the parking areas beside the convenience store will create a more dangerous situation. Such will be a threat to the safety of the residents and children in the neighborhood and the travelling public.

13. In reaching the above conclusion, I have considered the genuineness of the concerns of the ministers and residents in this community and also the excellent character of the applicant and his partner. However, based upon the totality of all the facts presented at the hearing and considerring the credibility of all the witnesses, it is my conclusion that the location is not proper for the grant or issuance of the beer and wine permit.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Albert Lawrence Garabedian, d/b/a Pit Stop for an off-premise beer and wine permit for the premises located at 430 Tigerville Road, Greenville County, Travelers Rest, South Carolina is denied.

AND IT IS SO ORDERED.

______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

February 17, 2000