Suburban Gas of Summerville, Inc. v. Town of Summerville , 283 S.C. 580 ( 1984 )

Ness, Justice:

Appellant Suburban Gas appeals from a declaratory judgment ruling the operation of its customer activated fuel pumps without the presence of an attendant is in violation of respondent Town of Summerville’s Fire Code. We disagree and reverse.

Suburban is an Exxon jobber, who sells fuel only to commercial users. Its gasoline and diesel fuel pumps could be activated by Suburban’s customers by the insertion of a special credit card at any time.

The Town cited Suburban for a violation of its Fire Code which requires service stations open to the public to have a qualified attendant on duty to supervise the dispensing of flammable liquids into fuel tanks or containers.

The issue was referred to a special referee who held Suburban’s operation was not a service station open to the public requiring the presence of an attendant under the Code. The circuit court reversed, ruling Suburban was subject to the Code provision.

According to Townes Associates, Ltd. v. The City of Greenville, 266 S. C. 81, 221 S. E. (2d) 773 (1976), we may make findings of fact in accordance with our own view of the preponderance of the evidence.

Appellant contends the trial court erred in concluding its operation was a service station open to the public. We agree.

A service station is defined in the Fire Code as “a place of retail business at which refueling is carried on by using fixed dispensing equipment connected to underground storage tanks ... and at which goods and services are generally required in the operation and maintenance of motor equipment.” (Emphasis added.)

Suburban sells its product for less than retail price. Its storage tanks are above ground, and no goods or services are for sale, only fuel.

Additionally, the Code specifically excepts service stations not open to the public from the requirement of an attendant’s presence. Suburban is open only to volume purchasers of fuel who are in business, industry or government. It refuses applications from individuals.

We hold Suburban is not a service station as defined under the Fire Code and further that its operation is not open to the public so as to require an attendant.

Reversed.

Littlejohn, C. J., Gregory and Harwell, JJ., and Curtis G. Shaw, as Acting Associate Justice, concur.