SC Administrative Law Court Decisions

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.^[1] 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.^[2] 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