ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (ALC or
Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2007),
and S.C. Code Ann. § 61-2-90 (Supp. 2007) for a contested case hearing.
Petitioner is seeking an off-premises beer and wine permit for S.A. Guerry
& Son. After proper notice, a hearing was held on June 4, 2008 at the
offices of the ALC 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 proof upon the Petitioner
and the Respondent, I make the following Findings of Fact by a preponderance of
the evidence:
1. Petitioner
seeks an off-premises beer and wine permit for S.A. Guerry & Son, located
at 16 Twins Road, Kingstree, South Carolina.
2. Petitioner
has been a resident of the State of South Carolina for over 75 years. Petitioner
also has not had a permit or license revoked within the last two (2) years and
notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
3. Johnson
Tisdale is the owner of S.A. Guerry & Son. Mr. Tisdale lives approximately
two miles from the location. S.A. Guerry & Son is located near the
intersection of Sims Reach Road, Millwood Road and Twins Road. The store has
been open in the current location for over one hundred years. After a fire
destroyed the building in 2007, it was rebuilt and reopened approximately three
months ago. The store is open from 7 a.m. to sundown Monday through Saturday.
There are at least two employees on the premises at all times. Mr. Tisdale
also regularly visits the store. When the store was rebuilt, a full kitchen
and two booths were added so that hot meals could be served. There have never
been any problems or complaints with S.A. Guerry & Son nor has there ever
been the need for law enforcement at the location.
4. The primary
issue for consideration is the protest to the permit.
Hazel Hudson was the sole Protestant to the issuance of the permit. Ms. Hudson
is concerned that the issuance of a beer and wine permit will lead to an
increased amount of traffic in the area and that people who have already been
drinking will be drawn to the store to purchase more alcohol. She is also concerned
about the proximity of the church and community center to the store. Millwood United Methodist Church is located approximately 275 feet from S.A. Guerry &
Son. Furthermore, a community center associated with the church is
approximately 465 feet from the store.
The
Court was struck by the sincerity of the Protestant. However, while Ms.
Hudson’s arguments appear to be based on a genuine concern for the church and
community, in order to deny the permit, there must be specific evidence of an
adverse impact to the community. Though the evidence offered raises “potential”
concerns that the permit may effect traffic or change the integrity of the
vicinity, the evidence did not establish that the granting an off-premise
permit for this location will have an overall adverse impact on the community.
There also was no evidence of an existing criminal problem that could be
exacerbated by granting the permit. However, if a significant change occurs as
a result of Petitioner receiving this permit, the proposed location would no
longer be suitable and the community and/or the Department could properly bring
an action to prohibit the renewal of Petitioner’s permit. Therefore, I find
that Petitioner’s proposed location is suitable for an off-premise beer and wine
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 (Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.
Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the Court the
responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
2. S.C.
Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2006) set forth the requirements for
the issuance of a beer and wine permit.
3. Although
"proper location" is not statutorily defined, the Administrative Law
Court is vested, as the trier of fact, with the authority to determine the
fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E.2d 118 (1981). 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 upon the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
In determining the suitability of a location, it is proper for this Court to
consider any evidence that demonstrates the adverse effect the proposed
location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to consider the
previous history of the location. Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198
S.E.2d 801 (1973). Furthermore, 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; Taylor v.
Lewis, 261 S.C. 168.
“A
liquor license or permit may also be properly refused on the ground that the
location of the establishment would adversely affect the public interest, that
the nature of the neighborhood and of the premises is such that the
establishment would be detrimental to the welfare . . . of the inhabitants, or
that the manner of conducting the establishment would not be conducive to the
general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121
at 501 (1981). Nevertheless, 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. See 45
Am. Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating
Liquors §119 (1981).
4. Petitioner
meets the statutory requirements for holding an off-premise beer and wine
permit at the proposed location.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the Department resume processing Petitioner's
application for an off-premise beer and wine permit.
AND
IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
June 5, 2008
Columbia, South Carolina
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