ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002), S.C. Code Ann. § 61-2-90 (Supp. 2002),
S.C. Code Ann. § 61-4-525 (Supp. 2002) and S.C. Code Ann. § 61-6-185 (Supp. 2002) for a
contested case hearing. The Petitioner seeks an on-premises beer and wine permit for Coley, Inc.,
d/b/a 97 Midway, located at 1635 Great Falls Highway, Chester County, Blackstock, South
Carolina.
The South Carolina Department of Revenue (Department) set forth in the Agency
Transmittal to the Division that it would have issued the permit to the Petitioner but for the protests
it received from concerned citizens who raised the issue of suitability of location. A hearing was held
on November 25, 2003 at the offices of the Division in Columbia, South Carolina.
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 and the
Protestants, 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 and the Protestants.
2.The Petitioner seeks an on-premises beer and wine permit for Coley, Inc., d/b/a 97
Midway, as a corporation doing business at 1635 Great Falls Highway, Blackstock, South Carolina.
3.The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp.
2002) concerning the residency and age of the owner of the Petitioner, Grace Coley, are properly
established. Furthermore, Ms. Coley, who has previously owned an on-premises beer and wine
permit in the past, has not had a permit revoked within the last two years and notice of the application
was lawfully posted both at the location and in a newspaper of general circulation. The proposed
location is also not unreasonably close to any church, school, residence or playground. The closest
church, Pleasant Grove Presbyterian Church, is one-quarter (¼) mile from the location while the
closest residence is approximately three hundred fifty (350') feet away.
4.Ms. Coley has no criminal record and is of sufficient moral character to receive a beer
and wine permit.
5.This location had been previously permitted for on-premises consumption. However,
the location has been abandoned for about ten (10) years. It is situated on the corner of Highway 97
and Pleasant Grove Church Road in a predominantly rural area of Chester County. The Petitioner
testified that the location will be operated as a convenience store and tackle shop. She stated that the
hours of operation at this location will be from early morning to 11:00 p.m. Ms. Coley also set forth
that she was seeking an on-premises permit because of her past experiences regarding the tendency
of customers to purchase and immediately consume beers while in her other store. She wants to
head off any legal troubles this situation could possibly cause were she to be granted an off-premises
permit. Consequently, 97 Midway will have an area with tables where customers could drink at the
location. However, the Petitioner did not express any intent to operate a bar at the location. Ms.
Coley also set forth that she will not be personally running the location but that she would drop by
the location on a daily basis to insure that it is being run in compliance with the law and this Order.
6.The proposed location is situated at the corner of Highway 97 and Pleasant Grove
Church Road. A stop sign is positioned at the end of Pleasant Grove Church Road at the side of the
location. The Protestants contend that the Petitioner’s location is not suitable because the building
itself is located too close to Highway 97 and Pleasant Grove Church Road. The church has afternoon
programs outside its regular services on Mondays, Wednesdays and Thursdays. Therefore, the
Protestants believe that permitting 97 Midway will cause immense problems with traffic because the
parked cars at the location will block the view of individuals seeking to enter Highway 97 from
Pleasant Grove Church Road.
When the location was previously permitted, patrons parked at the front and to the side of the
location on Pleasant Grove Church Road, creating precarious traffic conditions. Additionally, the
Pleasant Grove area has been steadily growing since the location was last permitted approximately
ten (10) years ago. Several farms have been subdivided and sold to create residential subdivisions
that have brought in a substantial number of families. I find that the proximity of the location to
Highway 97, coupled with the increase in traffic in this area because of the development of additional
residences and the fact that Highway 97 serves as a conduit to Interstate 77, creates the probability
of an increase in traffic accidents.
Nevertheless, the location can park about ten (10) to fifteen (15) vehicles safely at the rear
of the location. Consequently, I find that with the restrictions set forth below and incorporated into
this permit the proposed location will not create problems regarding traffic. Moreover, the evidence
did not establish that the granting of this permit for the operation of the location as the Petitioner
proposes will augment the criminal activity in this area or have an overall adverse impact on the
community.
Therefore, I find that the proposed location is suitable for an on-premises beer and wine
permit with the restrictions set forth below. These restrictions are necessary to protect the public
safety of citizens traveling the roadways in the area. Furthermore, the determination of the suitability
of the proposed location is based not only upon the restrictions below but also the proposed nature
of the Petitioner’s business as a convenience store and not a bar. Though the location was permitted
in the past, the character of the community has evolved to be more residential. Consequently, if the
Petitioner’s business is not operated as described in this Final Order and Decision or the Petitioner
fails to comply with these restrictions, the proposed location would need to be reevaluated to
determine if it is suitable and the Department could properly bring an action to revoke the Petitioner’s
permit.
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 (1986 & Supp. 2002) 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. 2002) 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. 2002) sets forth the requirements for the issuance
of an on-premises 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. 7-200.1(I) (effective June 27,
2003) authorizing the imposition of restrictions to permits, provides:
Any written stipulation and/or agreement which is voluntarily entered
into by an applicant for a permit or license between the applicant and
the Department, if accepted by the Department, will be incorporated
into the basic requirements for the enjoyment and privilege of
obtaining and retaining the permit or license and shall have the same
effect as any and all laws and any and all other regulations pertaining
to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall
constitute sufficient grounds to revoke said license.
8.Without sufficient evidence of an adverse impact on the community, the application
must not be denied if the statutory criteria are satisfied. Furthermore, 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).
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 following restrictions set forth below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premises beer and wine permit of Coley, Inc., d/b/a 97
Midway, be granted, with the following restrictions set forth below:
The Petitioner will absolutely prohibit parking at the front and to the
side of the location on Pleasant Grove Church Road within twenty-five (25') feet of the stop sign. To enforce this restriction, the
Petitioner may erect any barriers or signage it may see fit, so long as
these do not obstruct any visual fields of approaching drivers to the
stop sign on Pleasant Grove Church Road.
IT IS FURTHER ORDERED that a violation of the above restrictions be considered a
violation against the permit and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department resume processing the Petitioner’s
application and issue an on-premises beer and wine permit to the Petitioner upon the Petitioner
signing a written Agreement with the Department that it will strictly adhere to the above restrictions
and upon payment of the proper fees and costs.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson III
Administrative Law Judge
December 16, 2003
Columbia, South Carolina |
