ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) upon the request of the
Petitioner Anthony T. Jones, d/b/a Gregg Street Grocery for a contested case hearing pursuant to
S.C. Code Ann. §61-4-520 et seq. (Supp. 2003). The Petitioner seeks an on-premises beer and
wine permit for the location at 1309 Gregg Street, Columbia, South Carolina. This matter is
presently before the Court because of a protest by a concerned citizen concerning the suitability
of the location and the denial of the permit by the Department. After notice to all parties and the
Protestant, a hearing was conducted on April 22, 2004, at the Court in Columbia, South Carolina.
At the hearing, the parties and Protestant were present as indicated above.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit for the location known
as Gregg Street Grocery, located at 1309 Gregg Street, Columbia, South Carolina.
2. The Respondent, South Carolina Department of Revenue, determined that the
location met all statutory requirements at the time of the application, but was concerned because
the Petitioner had applied for an on-premises permit for a grocery/convenience store. In addition,
the Petitioner has a criminal record, and the Department determined that the Petitioner was not of
suitable moral character to have an alcohol license.
3. The location is in an area of Columbia that is a mixture of residential and
commercial establishments. The Petitioner testified that the store is like a convenience store, as
identified by his business license, in that he has cold sandwiches available for take out. In
addition, there is a pool table and two bar stools for patrons to use if they remain in the store. He
testified, however, that his grocery stock is severely depleted, due in part to his financial
difficulties. The Petitioner admitted during cross-examination that he did not have milk, canned
goods, or diapers, but did have soft drinks available.
4. Testimony was presented that this location has been licensed in the past for
alcohol sales when the Petitioner’s mother ran the store. The Petitioner has assisted his mother
with the business in the past, and has been running it since her illness.
5. The Protestant’s church is near the proposed location. Reverend Hall does not feel
feel that the store, as an alcohol outlet, contributes to a good environment in the neighborhood.
The church has had problems in the past with noise and litter from the location. They are
concerned about the proximity of the location to the nearby church and its daycare, and the
increased traffic in the area due to the store.
6. The applicant was forthcoming in his testimony concerning his criminal history.
The State Law Enforcement Division’s criminal background investigation revealed numerous
criminal violations for the applicant, including several counts of Fraudulent Checks, Burglary,
Assault with Intent to Commit Sexual Assault, Public Disorderly and Trespassing. Based on this
information, the Department of Revenue opposed the Petitioner’s application, stating that Mr.
Jones is not of “good moral character” as required by S.C. Code Ann. § 61-4-520 (Supp. 2003).
In addition, Mr. Jones failed to list his complete criminal history on his application. He did
testify at the hearing that he had reported the sexual assault which he considered the most serious
offense. According to Mr. Jones’ testimony, he believed that he only had to report felony
convictions.
7. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained his principal residence in the State for at least thirty
days prior to the application.
8. Notice of the application appeared in a newspaper of general circulation in the
area of the proposed location, once a week for three consecutive weeks and notice was posted at
the proposed location for fifteen days.CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.The South Carolina Administrative Law Court has jurisdiction over this matter
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003).
2.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).
3.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. Fast Stops, Inc., v. Ingram, 276 S.C.
593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit).
4.It is also the fact finder’s responsibility to judge the demeanor and credibility of
the witnesses and determine the relevance and weight of any testimony offered.
5.The determination of suitability of 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. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991).
Further, the Judge may consider whether there have been law enforcement problems in the area.
Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also,
the Judge may consider the proximity or the absence of other licensed locations in the immediate
vicinity, as well as the existence of small children in the area.
6.In considering the suitability of a location, it is relevant to consider the previous
history of the proposed 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).
7.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 alone to deny the application. 48
C.J.S. Intoxicating Liquors § 119 (1981). In this case, however, the statutory criteria are not
satisfied. The Petitioner has a criminal record and is not of good moral character as required by
S.C. Code Ann. § 61-4-520 (Supp. 2003).
8.S.C. Code Ann. § 61-4-525 (Supp. 2003) 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 (5) miles of the location, may protest the issuance of the permit if he files a written protest.
9.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South
Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10. In addition, S.C. Code Ann. § 61-4-540 (Supp. 2003) requires the Applicant for a
beer and wine permit to disclose his criminal history. The Petitioner failed to do so fully,
mistakenly believing that it was not necessary, because some of the crimes were misdemeanors
rather than felonies. Even though he disclosed all prior convictions on the witness stand, the
application was incomplete. The Department may deny the permit for this reason. 7455 Inc. v.
Oregon Liquor Control Com'n, 800 P.2d 781 (1990).
11.After considering all the relevant factors, I find that while the Petitioner is sincere
in his efforts to turn his life around and have a successful business, his extensive criminal record,
the lack of understanding of the importance of fully complying with the application process, and
the concerns of the Protestants, necessitates a denial.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue deny the Petitioner’s
application for an on-premises beer and wine permit.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
May 3, 2004
Columbia, SC |